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AMERICAN CITIZEN SERIES. 

EDITED BY 

ALBERT BUSHNELL HART, LL.D, 



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ACTUAL GOVERNMENT ^ 



ALBERT BUSHNELL HART. 



American Citizen Series 

Edited by Albert Bushnell Hart, LL.D. 



Outline of Practical Sociology; with Special 
Reference to American Conditions. 

By Carroll D. Wright, President of Clark Col- 
lege. With 2 Maps and 15 Diagrams. Crown 8vo. 

Actual Government as Applied under Ameri- 
can Conditions. 
By Albert Bushnell Hart, LL.D., Professor of 
History in Harvard University. With 6 Colored 
Maps and 11 other Illustrations and Diagrams. 
Crown 8vo. 

Financial History of the United States. 

By Davis R. Dewey, Professor of Economics and 
Statistics in the Massachusetts Institute of Tech- 
nology. With 15 Diagrams. Crown 8vo. 

Constitutional Law in the United States. 

By Emlin McClain, LL.D., sometime Lecturer on 
Constitutional Law at the State University of Iowa. 
Crown 8vo. 

Principles of Economics ; with Special Ref- 
erence to American Conditions. 

By Edwin R, A. Seligman, McViclcar Professor of 
Political Economy in Columbia University. With 
6 Colored and 22 other Diagrams. Crown 8vo. 



LONGMANS, GREEN, & CO. : NEW YORK 



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Actual Government 



AS APPLIED UNDER 
AMERICAN CONDITIONS. 



BY 

ALBERT BUSHNELL HART, LL.D., 

^rnfrsaor of f^igtorj in ?§ar6artr fflnibcrBttg ; 

AUTHOR OF "formation OF THE UNION," "NATIONAL IDEALS," 
" FOUNDATIONS OF AMERICAN FOREIGN POLICY," ETC., ETC. 



Third Edition 
Revised 



LONGMANS, GREEN, AND CO., 

91 AND 93 FIFTH AVENUE, NEW YORK 
LONDON, BOMBAY, AND CALCUTTA 

1908 



LlgRARY ot CONGRESS 
OneCupy Kecelved 

CLASS 4 AXc. No. 
COPY Aj 



Copyright, 1903. 
By Longmans, Green, and Co. 

First Edition published July, 1903. 

Second Edition thoroughly revised, July, 1904. 

Third Edition revised, April, 1908. 



THE UNIVERSITY PRESS, CAMBRIDGE, U.S.A. 



To MARY PUTNAM HART, 

JOINT GOVERNOR. 



Preface. 



Where there are so many clear, well-thought, and 
accurate text-books upon the government of the United 
States, a new book requires an explanation, if not an 
apology. The reason for this volume is the conviction 
that there is room for a college and upper high-school 
text-book which shall emphasize five points of view 
with respect to American government. 

First of all, the American governmental system should 
be treated as a whole : state government and the various 
phases of local government should come in, not as after- 
thoughts to the national system, but as integral parts of 
one American government. 

The second necessity is to study the actual workings 
of government : the text of constitutions and of statutes 
is only the enveloping husk ; the real kernel is that 
personal interest and personal action which vitalizes 
government. For example, the adoption of rules by 
the House is only preliminary to the exercise of the 
extra-constitutional authority of the speaker and the 
committees. Description of realities sometimes be- 
comes a criticism ; in the attempt to picture things as 
they are, it will sometimes be necessary to tell the truth 
about things which we wish were otherwise. 

In the third place, a thorough text-book must discuss 
not only the machinery of government but the operations 
of government; legislatures do not exist simply to be 



viii Preface. 

investigated by students, but to express the public will 
that things be done ; the functions of governments — 
such as the administration of justice, taxation, expen- 
diture, transportation, the maintenance of order — are 
more important than the details of governmental organ^ 
ization. Throughout I have tried to make clear the 
make-up of governments and the status of officials ; 
but I have laid special stress on the purpose, extent, 
division, exercise, and limitations of governing power. 

In the fourth place the historical part of the book is 
not separated out from the descriptive ; instead of a 
preliminary sketch of colonial and Revolutionary insti- 
tutions, I have preferred to begin the discussion of each 
large topic with a brief account of how that particular 
agency or function came to be. 

Finally, there is at the service of the student of 
American government a large body of cogent material, 
both essential sources and carefully wrought secondary 
books; but it is still undigested. I have therefore 
thought it a proper part of this work to prefix a bibli- 
ography of the subject, as well as to insert classified 
references at the heads of the chapters. 

I am under special obligation to Mr. C. S. Hamlin, 
Mr. Edward Atkinson, Mr. E. H. Goodwin, and Frof 
P. H. Hanus for suggestions on portions of the proof; 
and the expert verification of Mr. David M. Matteson 
has added definiteness and exactness to statements on 
almost every page. 

Preface to the Third Edition. 

The favor shown to this book enables me to take 
advantage of this opportunity to correct a few errors 
and especially to insert the recent literature of the 
subject in the preliminary and chapter bibliographies. 

ALBERT BUSHNELL HART. 



Contents. 



Page 
SELECT BIBLIOGRAPHY OF AMERICAN GOVERN- 
MENT xxiii 

Part I. 

FUNDAMENTAL IDEALS. 

Chapter 
I. Physical Basis of Government. 

1. References 3 

2. The Land and its Resources 4 

3. Political Subdivisions 6 

4. Population and Distribution , . . 8 

5. Race Elements 9 

6. American Society 11 

II. The Individual and his Personal Rights. 

7. References 14 

8. The Citizen and the Alien 15 

9. Acquirement and Loss of Citizenship 16 

10. Privileges and Obligations of Citizenship ..... 19 

11. History of Anglo-Saxon Liberty 21 

12. Rights of Personal Freedom and Habeas Corpus . . 23 

13. Rights of Political and Religious Opinion 27 

14. The Right to Fair Judicial Proceedings 29 

15. Rights of Dependent People and Colonists .... 31 

16. Political and Social Rights 32 

III. The Frame of Government. 

17. References 34 

18. Sovereignty 35 

19. Sovereignty of the People 36 



X Contents. Pam I., ii. 

Chapter 

III. The Frame of Government (continued). Page 

20. Representative Government 38 

21. English Precedents of Free Government 39 

22. Colonial Precedents of Free Government 41 

23. The Earliest State Constitutions 45 

24. Genesis of the Federal Constitution 48 

25. Unity of American Government 51 

26. Separation of Powers 53 

27. Division of Powers 54 

28. The Written Constitution 56 

29. Preparation of Constitutional Amendments .... 59 

30. Ratification of Constitutional Amendments .... 61 

31. Construction and Application of Constitutions ... 63 



Part II. 

THE WILL OF THE PEOPLE. 

IV. Suffrage and Elections. 

32. References 65 

33. History of Anglo-Saxon Suffrage 66 

34. Qualifications for Voting 67 

35. Woman Suffrage 70 

36. Electoral Districts and Registration 71 

37. Methods of Voting and Count of Votes 73 

38. Minority and Proportional Representation 76 

39. Popular Votes on Constitutional and Legislative Ques- 

tions 78 

40. Exercise of the Suffrage 82 

41. Reform of Electoral Methods 84 

V. The Party and the Machine. 

42. References 86 

43. History of American Parties 86 

44. Party Organization and Party Committees 89 

45. The Caucus 91 

46. The Nominating Convention 93 

47. National Conventions 95 

48. The Machine and the Boss 98 

49. Influencing Voters 104 

50. Relations of National and Local Politics 106 

51. Reform of Party Methods 109 



Part III. States. xi 



Part III. 



STATE GOVERNMENTS IN ACTION. 

Chapter 

VI. The States and the Union. Pagb 

52. References 113 

53. Variety and Unity of State Organization ..... 114 

54. Admission into the Union 116 

55. Privileges in the Union 118 

56. Interstate Obligations ,120 

57. Duties in the Union, and State Sovereignty .... 122 

58. Functions of State Government 124 

VII. State Legislatures. 

59. References . 127 

60. Members of the Legislature 127 

61. Organization of the Legislature 129 

62. Process of State Legislation . 131 

63. Influences on State Legislation 133 

64. The Governor's Veto 136 

65. Output of State Legislation 137 

VIII. State Executives. 

66. References 140 

67. The Governor 140 

68. State Executive Departments 143 

69. System of State Boards 145 

70. State Officials 146 

71. Civil Service Reform in States 147 

IX. State Courts. 

72. References 151 

73. State Judges 151 

74. State Courts 154 

75. Criminal Law and Jurisprudence 155 

76. Civil Law and Jurisprudence 158 

77. Judicial Control of Executive Officials 161 

78. Declaring Statutes Void ,. 163 



xii Contents, parts IV., V. 

Part IV. 

LOCAL GOVERNMENT IN ACTION. 

Chapter 

X. Rural Units of Government. Page 

79. References 167 

80. Creation and Functions of Rural Governments . . . 168 
8i. School Districts, Villages, and Boroughs 169 

82. The Town System 170 

83. The County System 174 

84. Mixed County-Precinct and Township-County Systems 176 

85. Improvement of Rural Government 178 

XL City Governments. 

86. References 180 

87. History of American City Governments 181 

88. City Charters and City Functions 183 

89. City Government by State Legislation 186 

90. City Councils 188 

91. The Mayor 192 

92. City Departments 194 

93. City Officials and Employees 196 

94. Civil Service Reform in Cities 198 

XII. Problems of City Government. 

95. References 200 

96. Urban Residents 201 

97. Distribution of Population within Cities 203 

98. Problems of Transportation 205 

99. Political and Party Organization in Cities 208 

100. Essential Defects of City Government 210 

loi. Possible Improvements in City Government .... 212 

Part V. 

NATIONAL GOVERNMENT IN ACTION. 

XIII. Internal Organization of Congress. 

102. References 215 

103. History of the Two National Houses 216 

104. Choice of Senators 218 

105. Apportionment and Choice of Representatives ... 221 



Part V. Localities and Nation. xiii 

Chapter 

XIII. Internal Organization of Congress {continued). page 
io6. Meetings of Congress 226 

107. Privileges and Obligations of Members . • 227 

108. Speaker of the House 231 

109. Congressional Committees 233 

XIV. Congress at Work. 

no. References 237 

111. Open and Secret Sittings 237 

112. Rules and Party Management 239 

113. Parliamentary System and Congressional System . . 243 

114. Preparation of Measures 244 

115. Influences on Congress 245 

116. Debate in Congress 248 

117. Amendments of Measures, and Votes 251 

118. The Presidential Veto 254 

119. Output of National Legislation 256 

XV. The President. 

120. References 258 

121. History of the Presidency 259 

122. The Choice of the President 261 

123. The President's Life in Washington 267 

124. Functions of the President 269 

125. Presidential Appointing Power 270 

126. Relations with Congress 273 

127. Dignity of the Presidential Office 274 

XVI. National Civil Service. 

128. References 276 

129. Heads of Departments 277 

130. The Cabinet 279 

131. Presidential Removals 282 

132. Minor Appointments and Removals 285 

133. Reform of the Civil Service 288 

134. Civil Service Commission 290 

XVII. The Federal Judiciary. 

135. References 295 

136. History of the Federal Judiciary 296 

137. Federal Judges 298 

138. Federal Courts 301 

139. Process of Impeachment 304 

140. Federal Writs 306 

141. Cases involving Federal Law 309 



xiv Contents. 



Parts v., VI. 



Chapter 

XVII. The Federal Judiciary {continued). Page 

142. Cases involving Federal Parties 310 

143. States as Parties in Federal Suits 312 

144. Appeals 314 

145. Declaring Acts Void 315 



Part VI. 

TERRITORIAX FUNCTIONS. 

XVIII.' Land and Landholdin 

146. References 320 

147. Functions of Government 321 

148. Private Landholding 322 

149. Corporate and Railroad Landholding 325 

150. Municipal Real Estate and Eminent Domain . . . . 327 

151. State Real Estate 329 

152. National Real Estate 332 

153. The National Capital 333 

154. The Public Lands 335 

XIX. Boundaries and Annexations. 

155. References 342 

1 56. History of the National Area 342 

157. Processes of Annexation 345 

158. Exterior Land and Water Boundaries 346 

159. Territorial and State Boundaries 348 

XX. Territories and Colonies. 

160. References 352 

161. Jurisdiction Contrasted with Ownership 353 

162. District of Columbia 355 

163. National Forts and Sites 357 

164. Indian Reservations 358 

165. Status of Indians 361 

166. Organized Territories and Dependencies 364 

167. Unorganized Dependencies 369 

168. Protectorates 373 

169. The Monroe Doctrine 376 

170. Colonial Problems 378 



Parts VII., VIII. Functions. xv 
Part VII. 

FINANCIAL FUNCTIONS. 
Chapter 

XXI. Taxation. Page 

171. References 381 

172. Land Taxes 383 

173. Taxes on Personal Property 385 

174. Specific, Corporation, and License Taxes ..... 387 

175. Assessment and Collection of Taxes 389 

176. History of the Tariff 394 

177. Administration of the Tariff . 398 

178. Excise and Internal Revenue 401 

179. Amount and Incidence of Taxation 404 

XXII. Public Finance. 

180. References . . . 407 

181. Public Property . . 408 

182. Public Budgets 410 

183. Public Expenditures 414 

184. State Debt 419 

185. Municipal Debt 421 

186. National Debt 423 

187. Reforms in Public Finance 427 

Part VIII. 

EXTERNAL RELATIONS. 

XXIII. Foreign Intercourse. 

188. References 430 

189. History of American Foreign Policy 431 

190. Diplomatic Representatives 433 

191. Consuls 436 

192. Treaties 439 

193. The United States as a World Power 444 

XXIV. Foreign Commerce. 

194. References 446 

195. Regulation of Shipping 447 

196. Regulation of Immigration 450 

197. Movement of Foreign Commerce 453 

198. Our Commercial Neighbors 456 



Xvi Contents. Parts VIIL, IX. 

Chapter 

XXV. War Powers. Page 

199. References 459 

200. History of American Wars 459 

201. The Army 462 

302. The Navy 466 

203. Education of Officers 469 

204. The Militia 472 

205. Carrying on War 474 

206. Military and Naval Pensions 477 



Part IX. 

COMMERCIAL FUNCTIONS. 

XXVI. Organization of Commerce. 

207. References 481 

208. The Business Man and the Firm 482 

209. Corporations and Trusts 483 

210. Banks and Banking 487 

211. Transfer of Title to Property 489 

212. Doctrine of Contracts 493 

213. Weights and Measures 495 

214. Coinage and Currency 496 

215. Regulation of Commerce and Occupation 499 

2x6. Regulation of Labor 501 

217. State and Municipal Industries 503 

XXVII. Transportation. 

218. References 505 

219. State and Interstate Commerce 506 

220. Transmission of Intelligence 508 

221. History of Modes of Transportation 511 

222. Highways and Streets 513 

223. Navigable Rivers and Canals 517 

224. Harbors and Internal Improvements 519 

225. Railroads S21 

226. Public Aid to Railroads 5^6 

227. City Traction Systems 5^8 

228. Country Electric Lines . 530 

229. City Ownership of Traction Lines 532 



Part X. Functions. xvii 

Part X. 

GENERAL WELFARE. 

Chapter 

XXVIII. Education. Pagb 

230. References 535 

231. History of American Education 536 

232. Private and Ciiurch Schools 540 

233. Public Schools 541 

234. Endowed Universities and Technical Schools .... 544 

235. State Universities 546 

236. Religious and Moral Training of Youth 548 

237. Public Libraries and Museums 549 

238. Problems of Education 551 

XXIX. Religion and Public Morals. 

239. References ■ . 555 

240. History of American Churches ......... 555 

241. Government and Churches 557 

242. Religious Denominations 559 

243. Public Morals 561 

XXX. Public Order. 

244. References 564 

245. Crime and Punishment 565 

246. Charities and Corrections 566 

247. Regulation of the Liquor Traffic 569 

248. Public Health 571 

249. Fire Protection and Light 573 

250. The Police Force 575 

251. Riots and Insurrections 57^ 

252. Suppression of Disorder 57^ 

253. Ultimate Defence of Society 5^^ 



INDEX . o 585 



XVlll 



Contents. 



MAPS AND DIAGRAMS. 



Pagb 

Territorial Development of the United States Frontispiece 

Physical Features of the Continental Mass To face 4 

Distribution of Population in 1900 " 8 

An Australian Ballot " 74 

State Capitols " 130 

A Legislative Bill " 136 

County Buildings " 174 

County Buildings " 178 

City Buildings " 196 

A Gerrymandered State . " 222 

State Capitols " 332 

Rectangular Survey of Public Lauds " 336 

District of Columbia • " 356 

Indian Reservations " 360 

An Assessment Blank " 390 

Table of National Debt " 424 

Diplomatic and Consular Offices " 436 



SUGGESTIONS FOR STUDENTS. TEACHERS, 
AND READERS. 

The preface of this book sufficiently explains the writer's 
point of view, and makes clear that this is not a treatise on 
constitutional law either federal, state, or municipal ; but an 
attempt to describe the government as one might undertake to 
describe a great railroad. To prepare an adequate account of 
the Chicago and Northwestern, for instance, one would first 
study the founding of the road ; he would then examine its 
physical plant, buildings, material ; then he would study the 
personnel, from president and board of directors down to 
switchmen and track-layers, the treasurer's office and system 
of book-keeping, the tenure of the employees and their wages ; 
when all this was described, he would enter on the subject 
which most interests the observer and the investor, — the 
operation of the road, kinds of traffic (passeng^er, freight, ex- 
press, mail), gross receipts, operating expenses, dividends, 
bonds, stock and floating debt, methods of conducting ter- 
minals, train-despatching, accidents, and repairs. For such a 
study, one would seek not only published rate-sheets and annual 
reports but also the experience of travellers and shippers and 
practical railroad men. 

In using this book it must constantly be kept in mind that it 
is an attempt to explain both the organization and the functions 
of government, not simply by what constitutions and statutes 
say ought to be done, but by the experience of what is done. 
Compared with the immense body of facts which ought to be 
examined, the text is brief, and many important details must 
remain undescribed. It is expected that students will add to 
the necessarily general statements of the text through some of 



XX Suggestions for Students, Etc. 

the readings suggested at the chapter headings. The para- 
graph numbers make it easy to assign lessons or readings from 
day to day ; and by using some of the commonest materials 
a new insight may be had into many important fields. 

The literature of American government has been hitherto 
so little noted that a select bibliography has been placed at the 
beginning of the book, so as to furnish an opportunity for 
detailed and critical study of significant governmental questions. 
In the author's Manual of American History, Diplomacy, and 
Government is a printed list of several hundred such brief 
research subjects. 

In the long run, the student must verify or dispute many 
statements of this book through such knowledge of American 
government as he can get direct from men engaged in govern- 
ment as administrators, as employees, as politicians, or as 
business and professional men, whose experience throws them 
into contact with governments in action. 

SMALL REFERENCE LIBRARY. 

It may be convenient to make a brief hst of a few of the 
most helpful books on American government. The hst can be 
readily enlarged by using the select bibliography which follows 
and the bibliographical aids there enumerated. 

For General Reference. 

Bryce, James. The American Commonwealth. (2 vols., 3d ed., 
rev. N. Y., 1901.) 

GooDNOW, Frank Johnson. Politics and Administration. A 
Study in Government. (N. Y., 1900.) 

McClain, Emlin. Cottstitutional Law in the United States. 
{^American Citizen Series, N. Y., 1905.) 

WiLLOUGHBY, Westel Woodbury. The American Constitu- 
tional System. (N.Y., 1904.) 



Suggestions for Students, Etc. xxi 



For Special Reference. 

CooLEY, Thomas McIntyre. A Treatise on the Constitutional 
Limitations which rest upon the Legislative Power of the States 
of the Union. (6th ed. Boston, 1890.) 

Eliot, Charles William. American Contributions to Civili- 
zation., and other Essays and Addresses. (N. Y., 1897.) 

FoLLETT, Mary Parker. The Speaker of the House of Repre- 
sentatives. (N. Y., 1896.) 

GooDNOW, Frank Johnson. Principles of the Administrative 
Law of the United States. (N. Y., etc., 1905.) 

Albert Bushnell Hart (editor). American Citizen Series. 
(5 vols, published, N. Y., 1 899-1 907.) 

Hart, Albert Bushnell. Natiotial Ideals Historically Traced. 
{Atnerican Nation Series, N. Y., 1907.) 

Roosevelt, Theodore. American Ideals, a7id other Essays, So- 
cial and Political. (N. Y., 1897.) 

Story, Joseph. Commentaries on the Constitution of the United 
States. (2 vols., Boston, 1891, and other editions.) 

WiLLOUGHBY, Westel Woodbury (editor). The America?i 
State Series. (8 vols., N. Y., 1906-1908.) Described below. 



SELECT BIBLIOGRAPHY OF AMERICAN 
GOVERNMENT. 

No formal bibliography of government from the point of view of 
practice has been published ; and the material is hard to deal with, 
for most of the literature of discussion and criticism previous to 
the Civil War has little application to government in action; and 
many present-day books show little trace of study, or of acquaint- 
ance with real conditions. This bibliography, therefore, repre- 
sents only the most serviceable books, with some references to 
periodicals of special significance : the rich and instructive mate- 
rials in periodicals cannot be brought within the limits of a brief 
list of references like the following. 

I. Bibliographies and Finding lists. 

BowKER, Richard Rogers, and Iles, George. The Reader's 
Guide in Economic, Social, and Political Science. (N. Y., 1891 . ) 
— This book is a valuable compilation, including references both 
to books and to periodicals ; it lays more stress on social and 
economic literature than on political. 

Channing, Edward, and Hart, Albert Bushnell. Guide to 
the Study of American History. (Boston, etc., 1896.) — Though 
devoted especially to history, this book contains several lists 
of descriptive material : especially, bibhographical aids (§ 16) ; 
geographical material (§ 21); colonial records (§29); United 
States records (§§ 16.?, 30-30^); works of statesmen (§ 32); 
colonial institutions (§§ 146-148) ; foundation of the Constitu- 
tion (§§ 137, 142, 149, 154-156). 

Fletcher, William Isaac The A.L. A. Index: An Index to 
General Literature. (2d ed. Boston, etc., 1901.) — Refers to 
volumes of collected essays and like material, and thus supple- 
ments Poole's Index. 

Foster, William Eaton. References to the Constitution of the 
United States. (N. Y., 1890.) — The best bibliography of the 
kind ; very convenient and serviceable up to its date. 



xxiv Select Bibliography. 

Hart, Albert Bushnell. Manual of American History, Diplo- 
macy and Government. (Cambridge, 1908.) — Contains sug- 
gestions on the literature of government (§ 24) ; two lists of 
lectures on government with special references (§§ 96-133); 
special bibliographies of contested points (§§ 198-229) ; and 
about 800 governmental topics for investigation (§§ 283-299). 

Hart, Albert Bushnell. Introduction to the Study of Federal 
Government. (Boston, 1891.) — § 469 of this book is a bibliog- 
raphy of the national government, especially considered as a 
federation. 

Hart, Albert Bushnell, editor. The American Nation: A 
History. (27 vols., N. Y., 1904-1908.) — Critical essays on au- 
thorities in each volume. 

Jones, Leonard Augustus. An Index to Legal Periodical 
Literature. (2 vols., Boston, 1888, 1899.) — The most conven- 
ient key to the numerous valuable articles on government in law 
periodicals. It includes many articles from general periodicals. 

Larned, Josephus Nelson, editor. The Literature of Ameri- 
can History : A Bibliographical Guide. (Boston, 1902.) — A 
bibliography of American history with over 4,000 titles, each an- 
notated by an expert. 

Lunt, Edward Clark. Key to the Publications of the United 
States Census, 11 90-1881 . (Boston, 1888; American Statistical 
Association, Publications, New Series, I, 63-125.) 

Municipal Affairs. (N. Y., 1897-1902.) — Vol. V, No. i (March, 
1 901), is an invaluable classified list of books and articles on 
local government ; by far the best thing of its kind. 

Poole, William Frederick, Fletcher, William Isaac, and 
others. Poole's Index to Periodical Literature, 1802-1881. 
(Rev. ed. 2 vols. Boston, etc., 1893.) — First Supplement, 
1882-1886. (Boston, etc., 1888.) — Second Supplement, 1887- 
1891. (Boston, etc., 1893.) — Third Supplement, 1892-1896. 
(Boston, etc., iZgj .)— Fourth Supplement, 1897-1902. (Bos- 
ton, etc., 1903.) — The standard guide into general periodical 
literature, of great service on questions of government. — See 
the select list of periodicals below. 

Ringwalt, Ralph Curtis. Briefs ort Public Questions, -with se- 
lected lists of references . (N. Y., 1906.) Contains lists of refer- 
ences on twenty-five important questions in politics, economics 
and sociology, — based on the more extended Brookings, 
Walter DuBois, and Ringwalt, Ralph Curtis, Briefs 



Finding Lists. xxv 

for Debate on Current Political, Economic, and Social Topics. 
(N. Y., 1896.) 
WiNSOR, Justin, editor. Narrative and Critical History of 
America. (8 vols., Boston, etc., 1884-1889.) — In Vol. VII, 
255-266, is a careful study of the literature of the federal 
constitution. 

II. Constitutional and Governmental Histories. 

Very few historians have essayed the task of writing a compre- 
hensive history of the United States with the colonial beginnings, 
except as a text-book for Schools. The text-books which pay most 
attention to the organization and development of government are : 
Edward Channing, Students'' History (new edition, N. Y., 1902) ; 
Albert Bushnell Hart, Essentials in American History (N. Y., 1905) ; 
Alexander Johnston, High School History (edited by William 
MacDonald, N. Y., 1901) ; Harry Pratt Judson, Growth of the 
American Nation (Meadville, Pa., etc., 1895); Andrew Cunning- 
ham McLaughlin, History of the American Nation (N. Y., 1899); 
James A. Woodburn and Thomas F. Moran, American History 
and Goverttment (J>i . Y., 1906). 

The histories described below cover in detail considerable areas 
of the constitutional history of the United States ; but without 
very distinct treatment of the source and growth of institutions as 
they now are: — 

Adams, Henry. History of the United States of America dur- 
ing the Administrations of fefferson and Madison. (9 vols., 
N. Y., 1889-1891.) — One of the most illuminating works ever 
written about American History and institutions. 

Hart, Albert Bushnell, editor. The American Nation : A 
History. (27 vols., N. Y., 1904-1908.) — Many chapters on 
constitutional development and economic and social questions. 

HOLST, Hermann Eduard von. The Constitutional and Polit- 
ical History of the United States. (Translated by John J. Lalor 
and others. 7 vols, and an index vol., Chicago, 1 877-1 892.) 
— Devoted particularly to the discussion of the constitutional 
elements of the slavery contest. 

Mc Master, John Bach. History of the People of the United 
States from the Revolution to the Civil War. (6 vols., N. Y., 
1883-1906.) — The published volumes cover the period from 
1783 to 1842 and deal habitually with social rather than con- 
stitutional questions. 



xxvi Select Bibliography. 

Rhodes, James Ford. History of the United States from the 
Compromise of 1850. (7 vols., N. Y., 1893-1906.) — Excellent 
in discussions as to the nature of the Union. 

SCHOULER, James. History of the United States of America 
under the Constitution. (6 vols., Rev. ed. N. Y., 1895-1899.) 
— Covers the field from 1780 to 1865, but takes rather the politi- 
cal than the institutional standpoint. 

The books enumerated below are brief works setting forth the 
development of the nation, and they are therefore serviceable in the 
study of government : — 

American History Series. (7 vols., N. Y., 1 892-1902.) — Written 
by George Park Fisher, William Milligan Sloane, Francis Amasa 
Walker, and John William Burgess; covers the period from the 
discovery to 1876; the later volumes have much discussion on 
the principles of American government. 

Curtis, George Ticknor. Constitutional History of the United 
States. (2 vols., N. Y., 1889, 1896.) — Volume I is a reprint of 
the same writer's thorough History of the Constitution (2 vols., 
N. Y., 1854-1858). Volume II, covering the field from 1789 to 
1877, is a work of learning, and is useful, though not quite 
finished at the death of the writer. 

Frothingham, Richard. The Rise of the Republic of the United 
States. (Boston, 1872.) — A careful though dry study of the 
foundations in colonial experience, and of the slow development 
of national government. 

Hart, Albert Bushnell, editor. Epochs of American History. 
(3 vols., rev. ed., N. Y., 1897-1898.) — Three volumes, by 
Reuben Gold Thwaites, Albert Bushnell Hart, and Woodrow 
Wilson, covering American history from the discovery till 
near the present day; with bibliographies and chapter bibliog- 
raphies. 

Johnston, Alexander. History of American Politics. (4th 
ed., rev. by W. M. Sloane. N. Y., 1898.) — Essentially a succinct 
account of the questions discussed in Congress and of the issues 
of presidential elections, down to 1897. 

Landon, Judson Stuart. The Constitutional History and Gov- 
ernment of the United States. (Rev. ed. Boston, etc., 1900.) — 
A good general account of the constitutional history of the 
United States. 



Histories. xxvii 

Smith, Gold win. The United States : An Outline of Political 
History, 1^2-1871. (N. Y., 1893.) — A very brilliant study of 
the underlying causes and principles of American institutions as 
shown in the history of the country. Not very specific. 

Stanwood, Edward. A History of the Presidency. (Boston, 
etc., 1904.) — A revision of his History of Presidential Elec- 
tions. Contains a careful account of every presidential election, 
with platforms, votes, etc. 

III. Formal Descriptions of American Government. 

Civil government is a study widely pursued in American schools ; 
and there is a long list of text-books, for the most part now out of 
date. Among the most useful of the newer available text-books 
are : Anna Laurens Dawes, How ive are Governed (Boston, 
1885) ; Charles Fletcher Dole, The American Citizen (Boston, 
1891); Jesse Macy, Our Government (Rev. ed., Boston, 1890); 
Westel Woodbury Willoughby, Rights and Duties of American 
Citize7iship (N. Y., 1898). 

A really good and thorough account of the conditions and ten- 
dencies of American government should include not only the 
national government and administration, but also a description of 
the American representative system, and an account of state and 
local governments. A few books may be mentioned as fulfilling 
these conditions : — 

Ashley Roscoe Lewis. The American Federal State. (N. Y., 
1902.) — A comprehensive and useful book. 

Bryce, James. The American Commonwealth. ( 2 vols., 3d ed. 
rev. N. Y., 1901.) — The very best description of the American 
system, drawn by a keen and impartial observer. A meaty and 
complete book, every sentence of which has meaning. By its 
exactitude of style and quality of tone the book is well fitted to 
be a basis for class work. It is especially rich on state and local 
government. 

Bryce, James. The American Commonwealth. (Abridged edi- 
tion, N. Y., 1896.) — Prepared for class use, but still rather full 
for a text-book, and inferior to the larger edition in fulness of 
treatment and interesting illustration. 

Carlier, Auguste. La Republique Americaine : £tats Unis. 
(4 vols, in 5 pts., Paris, 1890.) — A long and laborious book, 
with no great evidence of incisive judgment. 



xxviii Select Bibliography. 

Hinsdale, Burke Aaron. The American Government^ National 
and State. (Rev. ed. Chicago, 1895.) — A very good, safe, 
sane book, with abundant reference to actual practice. Preceded 
by a good historical skeUth of the federal government. Only one 
brief chapter on local government. 

TocQUEViLLE, Alexis de. Democracy in America. (2 vols., 
Paris, 1 835-1 840. The most available translation is by Henry 
Reeve; various editions.) — After the lapse of nearly seventy 
years, still a profound and suggestive book. The first writer to 
comprehend the significance of town government. 

WiLLOUGHBY, Westel Woodbury. The American State Series 
(8 vols., New York, 1904-1908), as follows: — Baldwin, Simeon 
E. The Atnerican Judiciary; Fairlie, John A. Local Goverti- 
m,ent in Towns, Counties and Villages j Finley, J. H. The 
American Executive, and Executive Methods j Goodnow, F. J, 
City Government in the United States j Macy, Jesse. Party 
Organization J Reinsch, Paul S. American Legislatures and 
Legislative Methods j Willoughby, Westel W. The Ameri- 
can Constitutional System, j Willoughby, William F. Terri- 
tories and Dependencies. 

Wilson, Woodrow. The State : Elements of Historical and 
Practical Politics. (Rev. ed. Boston, 1900.) — An account of 
governments in general from the earliest times. Chapter xi is 
an excellent summarized description, in about a hundred pages, 
of government in the United States, including that in the states. 

IV. Constitutional Treatises. 

All the formal treatises on the constitutional law of the United 
States review the make-up of the national government and dis- 
cuss its powers. A very few of them — notably Von Hoist and 
Wharton — discuss state and local government. Few of the 
treatises written before the Civil War now have weight of author- 
ity, except the classics like Kent and Story, which have been 
published in successive critical editions. Through the foot-notes 
to the treatises, both to cases and to historical works, we may reach 
first-hand material of the highest value, bearing on all sides of 
American government ; for they refer both to state and federal 
cases. The principal modern treatises are as follows: — 

Bateman, William O. Political and Constitutional Law of the 
United States of America. (St. Louis, 1876.) — One of the 



Treatises. xxix 

earliest attempts to treat state and national government together, 
as one in origin and differentiated in purpose. 

Black, Henry Campbell. Handbook of American Constitu- 
tional Law. (2d ed. St. Paul, 1897.) — The most recent 
thorough treatise of its kind. 

BouTWELL, George Sewall. The Constitution of the United 
States at the End of the First Century. (Boston, 1895.) — A 
brief treatise, taking up the clauses of the constitution seriatim, 
and illustrating theiji by Supreme Court Cases. 

Burgess, John William. Political Science and Comparative 
Constitutional Law. (2 vols. Boston, 1890.) — A very learned 
work, with frequent comparisons with foreign governments. 
Little reference to practice. 

Cooley, Thomas McIntyre. The General Principles of Con- 
stitutiofial Law in the United States of America. (3d ed., rev. 
by A. C. McLaughlin. Boston, 1898.) — A good brief treatise 
on the subject, by a great constitutional lawyer. 

Cooley, Thomas McIntyre. A Treatise on the Constitutional 
Limitations which rest upon the Legislative Power of the States 
of the American Union. (6th ed. Boston, 1890.) — One of the 
few systematic books on state government, by a master of the 
subject. 

Dillon, John Forrest. Co7nmentaries on the Law of Munici- 
pal Corporations. (2 vols., 4th ed. 1890.) — The standard law- 
book on the subject, by a great corporation lawyer. 

Foster, Roger. Commentaries on the Constitution of the United 
States., Historical and fttridical ; with Observations upon the 
Ordinary Provisions of State Constittttions and a Comparison 
with the Constitutions of other Countries, (i vol., published 
in Boston, 1896.) — Very lucid, and abounding in illustrations 
drawn from actualities. 

Freund, Ernst. The Police Power, Public Policy and Constitu- 
tional Rights. (Chicago, 1904.)— Very good in its field. 

Goodnow, Frank Johnson. The Principles of the Admittis- 
traiive Law of the United States. (N. Y., 1905.) — Rewritten 
from his Comparative Administrati^ve Law. (2 vols., N. Y., 
etc., 1893.) — A clear exposition of this important and neglected 
subject ; includes state and local systems. 

Hare, John Innes Clark. American Constitutional L,aw. 
(2 vols., Boston, 1889.) — An ambitious and serviceable work. 



XXX Select Bibliography. 

Hart, Albert Bushnell. National/deals Historically Traced. 

{American Nation, XXVI, N. Y., 1907.) — Discussions of the 

rise and development of a series of institutions. 
HoLST, Hermann Eduard von. The Constitutional Law of the 

United States of America. (Translated by A. B. Mason. 

Chicago, 1887.) — An excellent brief book, with a study of the 

state and city governments. Especially adapted for laymen. 
HuRD, John Codman. The Theory of our National Existence, 

as shown by the Action of the Government of the United States 

since 1861. (Boston, 1881.) — A dry but powerful treatise on 

the nature of the government. 
Kent, James. Commentaries on American Law. (14th ed., 

revised by O. W. Holmes. 4 vols., Boston, 1896.) — The 

treatment of public law in this classic work relates almost 

wholly to the federal government. 
Lieber, Francis. Contributions to Political Science, including 

Lectures on the Constitution of the United States and other 

Papers. (Philadelphia, 1881. Vol. II of his Miscellaneous 

Writings.) — One of the earliest writers to seek for the real 

spirit of American government. 
McClain, Emlin. Constitutional Law in the United States. 

{American Citizen Series, N. Y., 1905.) — A brief, systematic 

work, clear, authoritative, and modern. 
Miller, Samuel Freeman. Lectures on the Constitution of the 

United States. (N. Y., 1891.) — By a justice of the Supreme 

Court. 
Ordronaux, John. Constitutional Legislation in the United 

States; its Origin, and Application to the Relative Powers of 

Congress and of the State Legislatures. (Philadelphia, 1891.) 

— A modern and serviceable work. 
Patterson, Christopher Stuart. The United States and the 

States under the Constitution. (Philadelphia, 1888.) — A dis- 
cussion of the constitutional status of the states. 
PoMEROY, John Norton. An Introduction to the Constitutional 

Law of the United States. (loth ed., rev. by E. H. Bennett. 

Boston, 1888.) — A standard and much quoted work. 
Rogers, Henry Wade, editor. Constitutional History of the 

United States as seen in the Development of American Law. 

(N. Y., 1889.) — A series of essays by various hands. 
Sage, Bernard J. (pseudonym P. C. Centz). The Republic of 

Republics ; or, American Federal Liberty. (4th ed. Boston, 

1 88 1.) — Best statement of states-rights principles. 



Treatises. xxxi 

Story, Joseph. Commentaries on the Constitution of the United 
States, -with a Preliminary Review of the Constitutional History 
of the Colonies and States before the Adoption of the Constitu- 
tion. (Published originally in 1833. Cooley's 4th and Bige- 
low's 5th editions are the best. 2 vols., Boston, 1873, 1891.) 
— Still an excellent commentary on the constitution ; lucid, clear, 
prophetic. 

Sutherland, William Angus. Notes on the Constitution of 
the United States. (San Francisco, 1904.) — Recent, good, and 
full on pending problems. 

Tiffany, Joel. A Treatise on Government, and Constitutional 
Law: being an Inquiry into the Source and Limitation of Gov- 
ernmental Authority, according to the American Theory. 
(Albany, 1867.) — Rather theoretical. 

Tucker, John Randolph. The Constitution of the United 
States : a Critical Discussion of its Genesis, Development, and 
Interpretation. (2 vols., Chicago, 1899.) — By a southern 
publicist; an extensive and thoughtful work. 

Wharton, Francis. Commentaries on Law em.br acing Chapters 
on the Nature, the Source, and the History of Law; on Interna- 
tional Law, Public and Private ; and on Constitutional and 
Statutory Law. (Philadelphia, 1884.) — Excellent in scope; 
much on state systems ; not much quoted by lawyers, but full of 
suggestive examples. 

Willoughby, Westel Woodbury. The American Constitu- 
tional System. {American State Series, N. Y., 1904.) Brief 
and suggestive. 

V. American Discussions of Actual Government. 

Besides the works which aim to give some complete picture of 
American government or of the federal constitutional system, 
many useful books take up phases of the system, or discuss the 
main underlying principles, or criticise the system as a whole. 
Some of these books are collections of essays, and among the 
most useful may be mentioned the following : — 

Baker, John Freeman. The Federal Constitution : An Essay. 
(N. Y., etc., 1887.) — A capital, though very brief discussion 
of the national government by a good critical observer. 

Baldwin, Simeon Eben. Modern Political Institutions. 
(Boston, 1898.) — ^Various questions of jurisprudence and gov- 
ernment, with a valuable discussion of state constitutions. 



xxxii Select Bibliography. 

Bradford, Gamaliel. The Lesson of Popular Government. 
(2 vols., N. Y., 1899.) — A criticism of American government, 
national, state, and municipal. Very argumentative and prej- 
udiced, especially against the committee system. 

Brownson, Orestes Augustus. The American Republic; its 
Constitution, Tendencies, and Destiny. (N. Y., 1866.) — An 
interesting discussion of the nature of government in general, 
and especially of the character of American democracy. 
Thoughtful and suggestive. 

Cleveland, Frederick Albert. Growth of Democracy in the 
United States ; or, the Evolution of Popular Co-operation in 
Government and its results. (Chicago, 1898.) — A searching 
and learned discourse on democracy and its effects on law and 
legislation. 

Crooker, Joseph Henry. Problems in American Society : some 
Social Studies. (Boston, 1889.) — Suggestive essays on chari- 
ties, temperance, education, and religion, with bibliographies. 

Draper, John William. Thoughts on the Future Civil Policy 
of America. (N. Y., 1865.) — Suggestive rather than learned. 

Eliot, Charles William. American Contributions to Civilisa- 
tion, and other Essays and Addresses. (N. Y., 1897.) — In 
large part a discussion of the principles and workings of Ameri- 
can democracy, written in an interesting style by a man of great 
experience who beUeves in democracy. 

Follett, Mary Parker. The Speaker of the House of Repre- 
sentatives. (N. Y., 1896.) — A book much extolled by ex-speak- 
ers and other public men, as one of the most clear-sighted 
discussions of the legislative side of the federal government. 

Ford, Henry Jones. The Rise and Growth of American Poli- 
tics : A Sketch of Constitutional Development. (N. Y., 1898.) 
— A serviceable work, chiefly on party and popular government. 

Giddings, Franklin Henry. Democracy and Empire, with 
Stiidies of their Psychological, Economic, and Moral Founda- 
tions. (N. Y., 1900.) — A series of essays on the relations of 
society to government, and especially to the government of 
dependencies. A strong and thoughtful book. 

Godkin, Edwin Lawrence. Problerns of Modern Democracy ; 
Political and Economic Essays. (N. Y., 1896.) — Essentially a 
discussion of popular government and its political machinery, by 
a keen, incisive pessimist. 



American Discussions. xxxiii 

GooDNOW, Frank Johnson. Politics a7id Administration : 
A Study in Governtnent. (N, Y., 1900.) — Devoted to showing 
the divergence of the actual from the formal system of govern- 
ment. Written by one of the most inspiring of American 
publicists. 

Hadley, Arthur Twining. The Education of the Ajuerican 
Citizen. (N. Y., 1901.) — Chiefly on the need of training 
public opinion. 

Harrison, Jonathan Baxter. Certain Dangerous Tendencies 
in Afnerican Life, and other Essays. (Boston, 1880.) — The 
first essay is a valuable discussion of the dangers of popular 
government in America. 

Hart, Albert Bushnell. Practical Essays on Atnerican 
Government. (N. Y., 1893.) — On various phases of national 
and local government, with especial reference to practice. 

Hildreth, Richard. Theory of Politics: An Inqinry into the 
Foundations of Govern?nents, and the Causes and Progress of 
Political Revolutions. (N. Y., 1853.) — An old-fashioned dis- 
cussion of the nature of government in general, with small 
reference to the United States. 

HuRD, John Codman. The Union State: A Letter to our 
States-rights Friend. (N. Y., 1890.) — A brief description of 
the nature of the constitution, as shown by historical evidence. 

Jennings, Louis John. Eighty Years of Republican Govern- 
ment in the United States. (N. Y., 1868.) — One of the earliest 
attempts to treat American government as an organism. 

Kelly, Edmond. Government, or Hu7nan Evolution. (2 vols., 
N. Y., 1900-1901.) — A philosophical discussion of the social 
bases of Democratic government. 

Lieber, Francis. Legal atid Political Hermetieutics : or. Prin- 
ciples of Interpretation and Construction in Law and Politics, 
with Remarks on Precedents and Authorities. (Enlarged edi- 
tion. Boston, 1839.) — A suggestive though somewhat dis- 
cursive book. 

Lodge, Henry Cabot. Histo?'ical and Political Essays. 

(Boston, etc., 1892.) — Interesting discussions of political and 

parhamentary methods, by a public man. 
Lowell, Abbott Lawrence. Essays on Government. (Boston, 

etc., 1889.) — A very suggestive book, especially in the discussion 

of cabinet versus congressional government. 



xxxiv Select Bibliography. 

MuLFORD, Elish A. The Nation : the Foundations of Civil Order 
and Political Life in the United States. (N. Y., 1871.) — A 
philosophical and didactic statement of the theory of national 
union and sovereignty. 

Roosevelt, Theodore. Essays on Practical Politics. (N. Y., 
etc., 1888.) — Atnerican Ideals and other Essays, Social and 
Political. (N. Y., 1897.) — The Strenuous Life: Essays and 
Addresses. (N. Y., 1900.) — Of these three volumes, part of 
the Practical Politics is reprinted in American Ideals. They 
include one of the best inside surveys of state and local politics 
available to students. 

Seaman, Ezra C. The American System of Government ; its 
Character and Workings, its Defects, Outside Party Machinery, 
and Influences, and the Prosperity of the People under its 
Protection. (N. Y., 1870.) — One of the earliest books to 
describe the actual workings of government ; abounds in sug- 
gestions of possible reforms. 

Stickney, Albert. A True Republic. (N. Y., 1879.) — Demo- 
cratic Government : A Study of Politics. (N. Y., 1885.) — The 
Political Problem. (N. Y., 1890.) — Suggestive studies of the 
defects of American government, and possible remedies. 

TiEDEMAN, Christopher Gustavus. The Unwritten Constitu- 
tion of the United States : A Philosophical Inquiry into the 
Fundatnentals of American Constitutional Law. (N. Y., 
1890.) — A very handy and intelligent book on actual federal 
practice, particularly with regard to personal rights. 

Wilson, Woodrow. Congressional Government : A Study in 
American Politics. (Boston, 1885.) — A criticism of the 
American " congressional " or " committee " system, as com- 
pared with the responsible cabinet system. Suggestive, though 
now supplemented by later studies. 

WooDBURN, James A. The American Republic and its Govern- 
ment. (N. Y., 1904.) — Many apt illustrations of practice. 

VI. Foreign Discussions of American Government. 

The foreign criticisms of American government during the last 
half century have been in the main kindly. Besides the treatises 
of Bryce, Carlier, De Tocqueville, and Von Hoist, which are 
described above, the following may be mentioned : — 



Foreign Discussions. xxxv 

BORGEAUD, Charles. The Rise of Modej'n Democracy in Old 
and New Englaftd. (Translated by Mrs. Birkbeck Hill. 
London, etc., 1894.) — A very original and interesting account 
of the beginnings of the American system. 

BouTMY, Emile. Studies in Constitutional Law : France — 
England — United States. (Translated by E. M. Dicey. Lon- 
don, 1 89 1.) 

Dicey, Albert Venn. Introduction to the Study of the Law of 
the [British'] Constitution. (5th ed. London, 1 891.) 

Gladstone, William Ewart. Kin Beyond Sea. (Reprinted, 
from North American Review, CXXVII, 179-212, in Gleanings 
of Past Years, I, ch. viii. London, 1879.) 

Lecky, William Edward Hartpole. Democracy and Liberty. 
(2 vols., N. Y., 1896.) — Pessimistic. 

Maine, Sir Henry Sumner. Popular Government: Four 
Essays. (N. Y., 1886.) — A wrong-headed book, having little 
knowledge of the actual nature of the American system. 

Ostrogorski, M. De7nocracy and the Orgafiization of Political 
Parties. (2 vols. Translated by Frederick Clarke. N. Y., 1902.) 

VII. Valuable Books on Special Topics. 

Most of the works here mentioned are cited below in the chapter 
bibliographies; the titles are placed here as a help to the verifica- 
tion of references, and as a guide to the librarian in ordering 
books. 

Adams, Henry Carter. Public 'Debts : An Essay in the 
Science of Finance. (N. Y., 1887.) 

Ames, Herman Vandenburg. The Proposed Amendments to 
the Constitution of the United States during the First Century 
of its History. (American Historical Association, Annual Re- 
port for 1896, Vol. n.) 

Bullock, Charles Jesse. The Finances of the United States 
from 1775 to 1789, with especial Reference to the Budget. (Madi- 
son, 1895; University of Wisconsin, Bulletin, Economics, 
Political Science and History Series, Vol. I, No. 2.) 

Carson, Hampton Lawrence. The Supreme Court of the 
United States : its History. (2 vols., Philadelphia, 1892.) 



xxxvi Select Bibliography. 

Channing, Edward. Town and County Government in the 
English Colonies of North America. (Baltimore, 1884 ; Johns 
Hopkins University, Studies in Historical and Political Science, 
Series II, No. 10.) 

CoLER, Bird Sim. Municipal Government, as illustrated by the 
Charter, Finances, and Public Charities of New York. (N. Y., 
1900.) 

Commons, John Rogers. Proportional Refij'esentation. (N. Y., 
1896.) — Races and hnmigrants in Afnerica. (N. Y., 1907.) 

CoNKLiNG, Alfred Ronald. City Government in the United 
States, with a chapter on the Greater New York Charter of 
1897. (4th ed. N. Y., 1899.) 

Dallinger, Frederick William. Nomitiations for Elective 
Office in the United States. (^Harvard Historical Studies, No. 
4. N. Y., 1897.) 

Dewey, Davis Rich. Financial History of the United States. 

{American Citizen Series. N. Y., 1903.) 
Dougherty, J. Hampden. The Electoral System of the United 

States. (N. Y., 1906.) 

Eaton, Dorman Bridgman. The Government of Municipalities. 

(N. Y., 1899.) 
Elliott, Charles Burke. The Principles of the Law of 

Public Corporations. (Chicago, 1898.) 

Ely, Richard Theodore. Taxation in American States and 
Cities. (N. Y., 1888.) 

Fairlie, John Archibald. Local Governments in Counties, 
Towns and Villages. (^American State Series. N. Y., 1906.) 
Municipal Administration. (N. Y., 1901.) — The National 
Administration. (N. Y., 1905.) 

Farrand, Max. The Legislation of Congress for the Govern- 
ment of the Organized Territories of the United States, 1789- 
1895. (Newark, N. J., 1896.) 

Fish, Carl Russell. The Civil Service and the Patronage. 
{Harvard Historical Studies, No. 11. N. Y., 1905.) 

Goodnow, Frank Johnson. City Government in the United 
States. {American State Series. N. Y., 1904.) — Municipal 
Hoitte Rule: A Study in Administration. (N. Y., 1895.) — 
Municipal Problems. (N. Y., 1897.) 



Special Topics. xxxvii 

Goss, John Dean. The History of the Tariff Admmistration in 
the United States, from Colonial Times to the McKinley Admin- 
istration Bill. (N. Y., 1891 ; Columbia University, Studies in 
History, Economic, and Public Law, Vol. I, No. 2.) 

Haines, Henry S. Restrictive Railway Legislation. (N. Y., 
1906.) 

Hall, Prescott F. Lmmigration and its Effects zipon the United 
States. (N. Y., 1906.) 

Howard, George Elliott. An Introduction to the Local Con- 
stitutional History of the United States. (Vol. I ; Baltimore, 
1889; no more published.) 

Jameson, John Alexander. A Treatise on Constitutional Coft- 
ventions : their History, Powers, and Modes of Proceeding. 
(4th ed. Chicago, 1887.) 

Jameson, John Franklin. Essays in the Constitutional His. 
tory of the United States in the Formative Period, 1775-1789. 
(Boston, etc., 1889.) — An Ititrodtiction to the Study of the 
Constitutional and Political History of the States. (Baltimore, 
1886. Johns Hopkins University, Sttidies iti Historical and 
Political Science, IV, No. 5.) 

Kerr, Clara Hannah. The Origin and Development of the 
United States Senate. (Ithaca, N. Y., 1895.) 

McConachie, Lauros G. Congressional Comtnittees : A Study 
of the Origins and Development of our National and Local 
Legislative Methods. (N. Y., 1898.) 

Macy, Jesse. Political Parties in the United States, 1846-1861. 
(N. Y.. 1900.) — Party Organization. (^American State Series. 
N. Y.,'1904.) 

Merriam, C. Edward. History of A7nericati Political Theo- 
ries. (N. Y., 1903.) 

Mason, Edward Campbell. The Veto Power: its Origin, 
Development, and Function in the Govern7nent of the United 
States, 1789-1889. (Boston, 1890.) 

Mayo-Smith, Richmond. Emigration and Immigration : A 
Study in Social Science. (N. Y., 1890.) 

MuNSTERBERG, HuGO. The Americans. (Translated by Holt. 

N.Y.,1905.) 
Myer, Balthasar Henry. Railway Legislation in the United 

States. (N. Y., 1903.) 



xxxviii Select Bibliography. 

Myers, Gustavus. The History of Tammany Hall. (N. Y., 
1901.) 

Randolph, Carman Fitz. The Law and Policy of Annexation, 
with special reference to the Philippines; together with Observa- 
tions on the Status of Cuba. (N. Y., 1901.) 

Reinsch, Paul S. American Legislatures and Legislative 
Methods. {American State Series. N. Y., 1907.) 

Salmon, Lucy Maynard. History of the Appointing Power of 
the President. (N. Y., etc., 1886 ; American Historical Associa- 
tion, Papers, Vol. I, No. 5.) — A new edition is in preparation. 

Sato, Shosuke. History of the Land Question in the United 
States. (Baltimore, 1886; Johns Hopkins University, Studies 
in Historical and Political Science, IV, Nos. 7-9.) 
.Shaw, Albert. Political Problems of American Development. 
(N. Y., 1907.) — Thoughtful discussion of the principal problems 
now awaiting adjustment. 

Stanwood, Edward. American Tariff Controversies in the 
Nineteenth Century. (2 vols., 1903.) 

Taussig, Frank William. The Tariff History of the United 
States : A Series of Essays. (4th ed. N. Y., etc., 1898.) 

Wendell, Barrett. Liberty, Union, and Democracy. (N. Y., 
1906.) — A briUiant characterization of American traits. 

Wilcox, Delos Franklin. The American City : a Problem in 
Democracy. (The Citizen's Library. N. Y., 1904.) — The Study 
of City Government : A^t Outline of the Problems of Municipal 
Functiotis, Control, and Organization. (N. Y., 1897.) 

Willoughby, Westel Woodbury. The Supreme Court of the 
United States : its History and Influence in our Constitutional 
Systetn. (Baltimore, 1890.) 

Willoughby, William Franklin. Territories and Dependen- 
cies of the United States, their Governmetit and Administration. 
{America7i State Series. N. Y., 1905.) 

VIII. Periodicals containing Materials on American 
Government. 

Annals of the American Academy of Political and Social Science. 

(Philadelphia, 1890-. 30 vols, to 1907.) — Especially interested 

in government. 
American Historical Review. (N. Y., 1895-. 13 vols, to 1907.) 
American Law Review. (Boston and St. Louis, 1866-. 41 vols. 

to 1907.) 



Periodicals. xxxix 

American Political Science Review. (Baltimore, 1906-.) Very 

serviceable to the subject. 
Appleton's Annual Cyclopaedia and Register of l7nportant Events, 

1861-1902. (42 vols., N. Y., 1862-1902.) — Called the American 

Annual Cyclopcedia until 1875. 
Atlantic Monthly. (Boston, 1857-. 100 vols, to 1907.) — Very 

many articles on actual government, by experienced public men. 
Chatauqtian. (Meadville, Pa., and Cleveland, 1880-. 48 vols. 

to 1907. 
Current History and Modern Ctdture. (12 vols., Detroit, Buffalo, 

Boston, and N. Y., 1891-1903.) — Formerly Quarterly Register 

of Current History and Cyclopedic Review of Current History. 
Forutn. (N. Y., 1886-. 34 vols, to 1907.) — Many discussions by 

public men. 
Good Government. (Boston, Washington, and N. Y., 1881-. 24 

vols, to 1907.) — Until 1892 called the Civil Service Record, and 

published at Boston. 
Green Bag. (Boston, 1889-. 19 vols, to 1907.) 
Harvard Law Review. (Cambridge, 1887-. 21 vols, to 1907) 
Independent. (N. Y., 1848-. 63 vols, to 1907.) — Since 1898 

issued as a magazine. 
Jourttal of Political Economy. (Chicago, 1892-. 15 vols, to 

1907.) 
Municipal Affairs. (6 vols., N. Y., 1897-1902.) — The best 

periodical on municipal government ; unfortunately discontinued. 
Nation. (N. Y., 1865-. 85 vols, to 1907.) — Invaluable for its 

views and its comments on public affairs, but very pessimistic. 
Niles^ Weekly Register and Niles'' National Register. (Baltimore, 

1811-1848. 73 vols.) — Indispensable on its period. 
North Americafi Review. (Boston and N. Y., 181 5-. 186 vols. 

to 1907.) — A repository of great value. 
Outlook. (N. Y., 1867-. 87 vols, to 1907.) — Until July i, 1893, 

called the Church Union and the Christian Union. 
Political Science Qtiarterly. (Boston, 1886-. 22 vols, to 1907.) 

— A thorough and well-edited American periodical. 
Public Opitiion. (Washington and N. Y., 1886-. 40 vols, to 1907.) 
Quarterly fournal of Economics. (Boston, 1886-. 21 vols, to 

1907.) — Many governmental questions, well treated. 
Statesman'' s Year Book. (London, 1872-. 44 vols, to 1907.) — 

Statistical and descriptive. 
Yale Review. (New Haven, 1892-. 16 vols, to 1907.) — Now 

chiefly devoted to questions of government and public law. 



yl Select Bibliography. 



IX. Principal Sources in American Government. 

The ultimate sources of knowledge on American government 
are much harder to reach than in history. The final will of the 
people is expressed in legislative action of many kinds, recorded 
in many places ; such as constitutions, constitutional amendments, 
treaties, national statutes, state statutes, city ordinances. Execu^ 
tive action is expressed in an enormous mass of messages, vetoes, 
nominations, executive decisions, votes of administrative boards, 
and orders to inferior officials. The courts express their findings 
in decisions, which are printed and digested ; and also in decrees, 
orders, reports, and the like, which may exist only in manuscript 
records. 

The best that can be done here is to indicate a few of the ser- 
viceable collections of material. Lists of collections of sources 
and specific references, both by origin and by topics, may be found 
in the following works : New England History Teachers' Associa- 
tion, Historical Sources in Schools (N. Y., 1902) ; Channing and 
Hart, Guide to the Study of American History (Boston, 1896) ; 
Albert Bushnell Hart, American History told by Contemporaries 
(4 vols., N. Y., 1897-1901), Introduction to each of the volumes; 
William Eaton Foster, References to the Constitution (N. Y., 
1890). 

Collections. 

Abbott, Howard S., editor. Cases on Public Corporations. 
(St. Paul, 1898.) 

Ames, Herman V. State Documents on Federal Relations. 
(4 nos., Philadelphia, 1 900-1 902.) 

Boyd, Carl Evans, editor. Cases on American Constitutional 
Law. (Chicago, 1898.) — Practically a selection out of Thayer's 
cases ; a handy single volume. 

Caldwell, Howard Walter, editor. American History 
Studies. (3 vols., Chicago, 1897-1900.) — These are brief 
related extracts. 

Hart, Albert Bushnell, editor. A?nerica7t History told by 
Contemporaries. (4 vols. N. Y., 1897-1901.) — A general top- 
ical index at the end of the fourth volume leads to many pieces 
on government in action. 



Sources. xli 

Hart, Albert Bushnell, and Channing, Edward, editors. 
A}nerica7i History Leaflets. (N. Y., 1892-. 35 numbers to 
1908.) — Contain many ordinances, colonial and other statutes, 
and public correspondence. Purchasable separately for class 
study. 

Hill, Mabel, editor. Liberty Documents : with Contemporary 
Exposition and Critical Com.jnents drawn froin various Sources. 
(N. Y., 1901.) — Both English and American documents on per- 
sonal liberty ; convenient and serviceable. 

McClain, Emlin, editor. A Selection of Cases on Constitutional 
Law. (Boston, 1900.) — Larger than Boyd, smaller than 
Thayer ; well selected. 

MacDonald, William, editor. Select Charters and other Doc- 
uments illustrative of A^nerican History^ 1606-1775. (N. Y., 
1904.) — Select Documents illustrative of the History of the 
United States, 1776-1861. (N. Y., 1898.) — ^,?/^^/ Statutes 
and other Documents illustrative of the History of the United 
States, 1861-1898. (N. Y., 1903.) — Three useful collections of 
foundation documents. 

Mead, Edwin Doak, editor. Old South Leaflets. (Boston, 
1883-. 173 numbers to 1907.) — To be had separately or in 
volumes ; many good pieces. 

Richardson, James Daniel, editor. A Compilation of the 
Messages and Papers of the Presidents, 1789-1897. (10 vols. 
Washington, 1 896-1 899.) — A collection poorly put together, 
but indispensable for the study of American government. 

Smith, Jeremiah, editor. Cases on Selected Topics in the Law 
of Municipal Corporations. (Cambridge, Mass., 1898.) 

Thayer, James Bradley, editor. Cases on Constitutiotial 
Law J with Notes. (2 vols., Cambridge, Mass., 1895.) — The 
best collection of constitutional cases, both national and state ; 
selected by a great lawyer. 

Debates of Public Deliberative Bodies. 

The federal debates have for many years been published in full, 

as follows : — 

Annals of Congress, 1789- 1824. (42 vols., Washington, 1834- 
1856.) — Register of Debates in Congress, 1824-1837. (29 vols., 
Washington, 1825-1837.) — The Congressional Globe : containing 



xlii Select Bibliography. 

Sketches of the Debates and Proceedings, 1833-1873. (109 vols., 
Washington, 1835-1873.) — Congressional Record.iZ']'^-. (Wash- 
ington, 1 873-.) 

No state publishes .verbatim reports of legislative debates ; a 
few cities publish them in official newspaper or like forms ; but 
they are hard to find. 

Statutes. 

All the states publish their statutes annually or biennially, and 
from time to time print Revised Statutes, including the laws in 
force. An annual summary of great service is 

New York State Library. Bulletin, Comparative Sutnmary 
and Index of State Legislation, 1890-. (Albany, 1891-.) — 
Bulletin, Review of Legislation, 1901-. (Albany, 1902-.) 
Year book of Legislation. (Albany, 1903 -.) Annual publica- 
tions of great service. 

City and other local governments collect and publish their ordi- 
nances from time to time, in forms easy to preserve when they 
first come out. 

The federal government publishes its statutes in various forms, 
chiefly as follows : — 

Statutes at large . . . and . . . Treaties, Conventions, Execu- 
tive Proclamations and the Concurrent Resolutions of the Two 
Houses of Congress. (33 vols, to 1905. Boston, 1846-1873, 
Washington, 1875 -.) The official collection of federal laws, 
containing also the treaties. 
Treaties and Conventions concluded between the United States of 
America and other Powers since fuly If., 1776. (Washington, 
1889.) 

Malloy, William M., Compiler. Compilation of United States 
Treaties in Force. (Washington, 1904.) 

Revised Statutes . . . embracing the Statutes of the U^iited States, 
general and permanetit in their Nature, in force on the First 
Day of December, 07ie thousatid eight hundred and severity-three. 
(2d ed., Washington, 1878.) — Stipplemerit to the Revised Statutes 
of the United States, 1874-1901. (2 vols., Washington, 1891, 
1901.) 



Sources. xliii 



Judicial and Administrative Decisions. 

The reports of the United States Supreme Court, those of the 
inferior federal courts, and those of the state supreme courts, are 
published in several forms, both official and unofficial, including 
condensations; and are made available through many digests. 
For full titles to federal reports and reprints, and to the digests 
through which state reports can be reached, see Albert Bushnell 
Hart, Manual of Atnerican History, Diplomacy, and Government, 
§ i8. 

The opinions of the Attorneys General of the United States, 
and the decisions of the Interstate Commerce Commission, Court 
of Claims, Commissioner of Patents, Commissioner of Pensions, 
and Commissioner of Public Lands, are separately published. 
Full titles will be found in Albert Bushnell Hart, Manual, § 68. 

Government Publications. 

A vast amount of valuable material is entombed in the printed 
documents of Congress. These are made more available by 
several new indexes, especially the following : — 

Ames, John Griffith. Cojnprehensive Index to the Publica- 
tions of the United States Govermnent, 1881-1893. (2 vols., 
Washington, 1905.) 

Greely, Adolphus Washington. Papers relati7ig to Early 
Congressional Docicments. (Washington, 1900 ; Senate Docu- 
ments, 56 Cong., I sess.. No. 428.) 

Poore, Benjamin Perley. A Descriptive Catalogue of the 
Government Publications of the United States, l'7'7Jf,~1881. 
(Washington, 1885.) — Poorly executed, and now out of date. 

United States. Catalogue of the Public Documents of Congress 
and of all the Departments of the Governmeiit of the United 
States from March 3, 1893. (Washington, 1896-. 4 vols, to 
1901, covering the period 1893-1899.) 

United States. Tables of, and Annotated Index to, the Congres- 
sional Series of United States Picblic Documents . (Washing- 
ton, 1902.) — Part II of a check-list of all the government 
publications up to 1893. 



xliv Select Bibliography. 

United States. Index to the Subjects of the Docti7nents and 
Repot'ts and to the Committees, Senators and Representatives 
presenting the7n. — Issued for each session of Congress. 

The state and local reports are rarely printed in consecutive 
form, and hence early disappear. There are few files of them 
anywhere. 

Works of Public Men. 

The diaries, letters, reminiscences, and state papers of American 
public men are of great service on government. For hsts of the 
principal public men, their works, and works about them, see Chan- 
ning and Hart, Guide, §§ 25, 32, 33, and A. B. Hart, Manual, 
§§ 27, 236, 237. The diaries of John Adams, William Maclay, 
and John Quincy Adams, the autobiography of George F. Hoar, 
and the letters of John and W. T. Sherman, are among the best. 



Fugitive Material. 

Much of the most valuable information about actual govern- 
ment comes from contact with public men, and from chance news 
in the daily papers. The Washington correspondents of the 
great dailies are among the best informed men on this subject. 
Many newspapers also have correspondents at the state capitals 
during the sessions of the legislatures. City councils and mayors 
are the subject of much newspaper discussion. 



Actual Government. 



Actual Government. 



Part I. 

Fundamental Ideals. 



CHAPTER I. 

PHYSICAL BASIS OF GOVERNMENT. 

1. References. 

Bibliography : Channing and Hart, Guide (1896), §§ 21a, 77-80, no, 
130, 145, 148, 180, 204, 213; C. D. Wright, Practical Sociology (1900), 
§§ 9, 17, 23 ; A. B. Hart, Manual (1908), §§ 97, 98. E. C. Semple, Am. 
History and its Geographic Conditions, chapter bibliographies. See also 
references in chs. xviii, xxiv, below. 

Boundaries : H. Gannett, Boujidaries of the U. S. and of the Several 
States (U. S. Geological Survey, Bulletins, No. 171, 1900) ; B. A. Hinsdale, 
Bounding the Original U. S. {Mag. of Western Hist., II, 401-423, 1885) ; 
W. F. Wilcox, Report on Boundaries (U. S. Twelfth Census, Bulletins, 
No. 74, 1901). 

Physical and Political Maps : The best physical maps are pub- 
lished by the Geological Survey of the United States, in various forms, 
of which the most serviceable are the detailed sheets of most of New 
England, New Jersey, and other detached sections, and small contour 
maps. A good wall map is furnished by the Commissioner of Public 
Lands for 80 cents. Small political maps are found in most of the school 
histories; in A. B. Hart, Epoch Maps (rev. ed., 1899); especially in The 
Ainerican Nation series (i 903-1 907). 

Geographical Characteristics: Good sketches in L. Farrand, 
Basis of Am. Hist. {Am. Natiott, II, 1904), chs. i-iv ; A. B. Brigham, Geo- 
graphic Influences in Am. Hist. (1903) ; E. C. Semple, Am. Hist, and its 
Geographic Conditions (1903) ; J. D. Whitney, U. S., I (1889), Supplement 
(1894); B. A. Hinsdale, How to Study and Teach Hist. (1894) ; N. S. 
Shaler (with collaborators), U.S. (2 vols., i894),I, chs. i-iii ; N. S. Shaler, 
Nature and Man in America (1891) ; R. G. Thwaites, The Colonies (loth 
ed., 1897); Bulletins oi the Twelfth Census (1900-) ; many geographical 
and descriptive articles in National Geographical Magazine, and Bulletin 
of the Am. Geographical Society. 

3 



4 Fundamental Ideals. [§ 2 

The People and their Social Condition : J. Bryce, Am. Com- 
monwealth (ed. 1901), II, chs. xci-xciii, part vi; C. D. Wright, Practical 
Sociology {1900), especially chs. ii-iv, vii, viii ; E. E. Sparks, Expansion of 
the Am. People (J900) ; E. L. Godkin, Problems of Modern Democracy 
(1897), chs. ii, viii, x; J. F. Muirhead, America the La^id of Cotitrasts 
(1902) ; H. Miinsterberg, Americans (1905), chs. xxi-xxiii ; L. Farrand, 
Basis of Am. Hist. {Am. Nation, II, 1904), chs. vi-xvii ; A. B. Hart, Na- 
tional Ideals {Am. Nation, XXVI, 1907), ch. x. — Sources : A. B. Hart, 
Contemporaries (1897-1901), II, §§ 80-108; III, §§ 10-36, 151-157; IV, 
§§ 75-83> 203-209. 

Population and Immigration : F. B. Dexter, Estimates of Popula- 
tion in the Am. Colonies {1887) ; recent censuses ; R. Mayo-Smith, Emi- 
gration and Immigration (1890) ; A. Shaw, Political Problems (1907), ch. 
ii ; E. R. A. Seligman, Ecofiomics {1907), §§ 21-26 ; E. E. Sparks, National 
Development (Am. Nation, XXIII, 1907), ch. ii. 

Race Questions : Am. Race Problems (Am. Acad. Pol. Sci., Annals, 
XVIII, 7-178, 1901) ; J. R. Commons, Races and Immigrants {kjo-j), oh. 
iii ; P. F. Hall, Immigration (1906), ch. xv ; W. E. B. DuBois, Souls of 
Black Folk (1903); A. Shaw, Political Problems (1907), ch. iii ; E. E. 
Sparks, National Development {Am. Nation, XXIII, 1907), chs. xiv, xvi ; 
A. B. Hart, Natiojtal Ideals {Am. Nation, XXVI, 1907), ch. iv ; W. G. 
'Brovm, Lower South (1902). 



2. The Land and its Resources. 

The purpose of this book is to account for and to describe 
the vast organism of American government. Without attempt- 
ing to define " the state " in general, or to explain the theory 
of the state, we shall undertake to make clear the nature of 
that community to which we give the name " the United 
States," including not only the national authority centred at 
Washington, but also the governments of the constituent states 
and their creations, the local governments. The fundamental 
basis of this study will be the conception that all forms of 
government, and all functions of government, within the United 
States, are factors of one great political system, expressed partly 
in traditional conceptions of democracy, partly in the federal 
constitution, partly in the state constitutions, partly in the 
charters or other acts of incorporation of localities, counties, 
cities, and towns, partly in the statutes of the nation, states, 
and local governments ; quite as much in the habitual practice 




niYSlCAL FEATURES 
CONTINENTAL MASS 






§ 2] The Land and its Resources. 5 

of all the various agencies of the government, as shown by 
what they actually do. 

To understand our country we must know its physical con- 
ditions, and especially the territorial basis of national life. 
Not reckoning our insular possessions and dependencies, the 
United States occupies a region stretching from the Atlantic 
Ocean to the Pacific, and from the 49th parallel, north latitude, 
to the 25th parallel on the south. The area of this continental 
block is 2,970,230 square miles; Alaska and the insular pos- 
sessions bring it up to 3,690,822 square miles. This area is 
divided into four north-to-south belts : first, the Atlantic slope, 
from the ocean to the Appalachian range, including New 
England and most of the Middle and South Atlantic states ; 
second, the Mississippi Valley, extending from Western New 
York to Idaho and Colorado, and practically including the 
upper Great Lakes ; third, the interior basin from the crest of 
the Rockies to the Sierra Nevadas ; fourth, the Pacific slope, 
chiefly the states of Cahfornia, Oregon, and Washington. 

The Great Basin is lofty, ill watered, and mostly sterile ; the 
two coast regions are well watered, well wooded, and abound 
in minerals ; and the Mississippi Valley is an area of fertile 
and easily accessible land, hardly equalled in the whole world. 
From the Atlantic to the Rockies the United States is flanked 
north, east, and south by tide water or navigable lakes ; it has 
splendid harbors looking eastward ; and the mountains west- 
ward present no obstacle to the building of railroads, which 
connect with ports on the Pacific. 

In climate and in products the United States is a strong, 
rich, and abundant land. From the snow-clothed summits of 
the Sierras to the sub-tropical regions of Florida and the 
Mississippi delta, the country abounds in food and in materi- 
als for clothing and house- building. It is also a country rich 
in mineral resources. Almost unsurpassed coal fields, vast 
reservoirs of oil, abundant mines of gold, silver, copper, and 
lead, unrivalled deposits of iron, — all these natural riches 
contribute to make the country wealthy, and at the same time 



6 Fundamental Ideals. [§3 

to diversify its interests. In the census of 1900, the annual 
agricultural products of the whole United States were valued 
at ^4,700,000,000, the manufactures at $8,400,000,000. It is 
not only a rich but a busy land, full of opportunities. 

These natural advantages have had a great effect upon the 
development of American government. The whole land east 
of the Rockies is so easily accessible, and the mountains and 
rivers are so easily passed that, since the French were ex- 
cluded in 1763, there has been no permanent division of the 
interior into independent communities. Men have passed 
back and forth, northward and southward, eastward and west- 
ward ; and the only attempt that has been made to divide the 
country — the rebellion of 1861 — failed because geographi- 
cally and politically there was no natural division into a North 
and a South. The ease of transportation has led to great 
rapidity of settlement in wild territory ; hence new communi- 
ties have rapidly sprung up, and the continental states of the 
Union have in a century increased from seventeen to forty-five. 
The wealth of the country and the ease of transportation have 
stimulated the growth of cities, for which a special system of. 
municipal governments has had to be contrived. The foreign 
commerce of the United States, its favorable position between 
two oceans, its internal wealth, have given to the national 
government enormous revenues and great prestige. In natu- 
ral resources our country is surpassed only by China ; in area 
of compact territory only by Russia ; in accumulated wealth 
by no people. The United States occupies a great territory, 
fitted by nature to be the home of a great nation. 

3. Political Subdivisions. 

The United States has a system of political subdivisions 
more complicated and various than that of most lands; for we 
have three main units of government, — the federal, the state, 
and the local, — each of which is subdivided for its own pur- 
poses. The most important kind of territory is the states of 
the Union, with boundaries partly derived from grants and 



§3] Political Subdivisions. 7 

charters made before the Revolution, and partly from acts of 
Congress admitting the later states into the Union. In addi- 
tion, the United States is divided into 9 judicial circuits ; the 
coast of the ocean fronts and the Great Lakes is divided into 
1 20 tariff collection districts ; the interior and the coast together 
are divided into 63 internal-revenue collection districts. 

The states are subdivided into counties, varying from 3 in 
Delaware to 249 in Texas ; and into election districts, first for 
members of Congress, then for the two houses of the state 
legislature. Within the counties are, in most states, towns or 
townships and cities (though a city sometimes occupies the 
whole area of a county, as in the case of Philadelphia). Within 
the townships are sometimes boroughs or villages, as well as 
electoral subdivisions. The cities are divided into wards and 
voting precincts. 

All these local boundaries are invariably fixed under author- 
ity of the state legislature, and are subject to constant change : 
counties are frequently subdivided, electoral districts are re- 
arranged, ward lines are redrawn from time to time, as cities 
grow ; hence people have very little interest in, and often very 
little knowledge of, their own political subdivisions. The city 
boundaries constantly tend to increase by taking in surround- 
ing country : thus the city of Chicago covers 190 square miles, 
including large areas of open prairie tilled as farms. 

The whole area of the United States not included within 
state boundaries is also subdivided into a variety of territories 
and districts, posts, reservations, and dependencies, which will 
be duly described hereafter. 

Nor is there any uniformity in these subdivisions. In 
France every department is divided into cantons, and every 
canton into communes ; in the United States each state sets 
up its own local system. Nearly all of us live in an electoral 
precinct ; a judicial district ; a representative, a senatorial, 
and a congressional district ; a town, a township, or a city ; a 
county ; and a collection district ; each of which has its special 
officers and its special purpose. 



8 Fundamental Ideals. [§ 4 

4. Population and Distribution. 

Upon the face of the land, and within the territorial sub- 
divisions just described, live in 1903 about 80,000,000 people, 
vi'hich is about fifteen times as many as in 1803. In 1790 our 
population was 4,000,000, and it has doubled, or nearly doubled, 
every twenty-five years since : thus in 181 5 the population was 
about 8,000,000; in 1840, over 16,000,000; in 1865, well 
over 32,000,000 ; in 1890 for the first time it showed a slower 
growth, being about 62,500,000 instead of 64,000,000 ; in 
1900 the official count was 76,303,387 (including Hawaii and 
Alaska, but not the other insular possessions). This makes 
the United States fourth in population of world-states, next to 
China, Russia, and Great Britain ; or, leaving colonies out of 
account, it is third ; and it is easily first in its power to pro- 
duce intelligent and educated men and to call upon them in 
time of need ; so that it is becoming the most powerful nation 
in the modern world. 

An examination of the map opposite, however, will show 
how unequally this population is distributed. Great areas in 
the West have less than two inhabitants to the square mile, 
while some sections in the heart of cities are as crowded as 
East London or Canton. The areas of thick population and 
of the richest and most prosperous cities are on the North 
Atlantic coast (from Portland, Maine, to Washington), through 
Central New York and the Valley of the Ohio, in the Northern 
Mississippi Valley, and about the Great Lakes. 

The distribution of population is much affected by concen- 
tration into cities. In 1900, 25,000,000, or nearly one third 
of the population, lived in the 546 cities. To be sure, the rural 
population is also increasing : the 50,000,000 rural dwellers in 
1900 are as many as the whole population, urban and rural, 
in 1880 ; but there are large areas, especially in New England, 
where the country towns have decayed and the former homes 
of prosperous families are left to go to ruin. This .is a sign 
not of loss, but of gain, an evidence that the people have found 




. Qreen ,& Co., i\ew York c£- London. 



DISTRIBUTIOX OF THE POPTJLATIOX OF THE UXITED STATES. 1900 

iReproduced from Ii(port, of Tirelfth U.S. Censun.] 



aOKKKt ll CO., H. 



§ s] Race Elements. 9 

better conditions in the neighboring cities or in far-off country 
homes. 

The largest aggregation of city population in 1900 was 
Greater New York, with 3,437,202 people; then followed, in 
the order of the number of people, Chicago, Philadelphia, 
St. Louis, Boston, Baltimore, Cleveland, Buffalo, San Fran- 
cisco, Cincinnati, Pittsburg. The city of New York has in 
it about as many people as the whole country west of the 
watershed of the Rocky Mountains ; and fourteen of the states 
of the Union have each fewer people than live in the city of 
Cleveland. The effect of city growth has been to disturb 
the balance of government within states possessing great cen- 
tres : in New York, Massachusetts, Maryland, Illinois, Missouri, 
Louisiana, and Ohio there is a diiference of interest between 
the urban and the rural parts of the state, and the country 
members of the legislatures constantly attempt to govern the 
cities. 

An important element in the distribution of population 
is the movement from state to state: 14,000,000 people, or 
nearly one fifth of the nation, were not born in the state or 
territory in which they live ; probably one third of the adult 
population has moved at least once from a state into another 
state. Thus, in Oklahoma only 15,000 out of the 100,000 of 
the whole population were born in the territory ; and even in 
an old and settled region like Iowa, about a quarter of the 
people have come from other states. This shifting about has 
carried principles of government from one part of the country 
to another ; but at the same time it has prevented the growth 
of a deep-seated feeling of attachment to one particular state, 
and of responsibility for its future. 

5. Race Elements. 

No great modern country has been so much affected by the 
coming-in of foreigners as the United States. In 1900 abour 
10,500,000 of its residents were born outside of the country : 
of these nearly 3,000,000 were from Germany or other Geiman- 



lo Fundamental Ideals. [§5 

speaking countries ; about 1,800,000 were Irish born ; England, 
Scotland, and Canada furnished a total of 1,800,000 ; Norway, 
Sweden, and Denmark, about 1,000,000 ; Slavs of various origin, 
about 1,200,000 ; France, Italy, and Mexico together, about 
700,000. In forty years the number of Irish-born Americans 
has been stationary, the Germans have more than doubled, and 
great numbers of Latin and Slav immigrants have come in from 
countries unrepresented in i860. 

These race elements are erratically distributed. The Irish 
and Slavs prefer the cities, the Germans and Scandinavians 
the open country. Some sections of the United States have 
almost no immigrants : thus, in the Southern states, leaving 
out Texas and Missouri, there are only about 400,000 for- 
eigners, — less than are to be found in the single city of 
Chicago. These foreigners have furnished laborers and work- 
men for the farm, for railroad-building, and for the factory, 
and they have greatly contributed to the building up of the 
great Northern cities. 

In addition to the 10,500,000 immigrants, nearly 16,000,000 
of our countrymen are born of a foreign-born father or mother 
or both parents ; so that of the 75,000,000 Americans, 26,000,- 
000 are chiefly of foreign origin, 9,000,000 are negroes, and 
only about 40,000,000 are of what may be termed an Ameri- 
can stock. Hardly in the history of mankind has a great 
country received such an influx of mixed population from with- 
out ; and the present prosperity of the republic is proof that 
this foreign element upon the whole is safe, and that in the 
course of time most of the descendants of foreigners will be 
absorbed into the body politic. 

The negro population of 9,000,000 includes nearly every 
person who has any discoverable admixture of negro blood, 
even to the thirty-second degree. That population has a large 
birth-rate, but also a large death-rate, and hence increases at 
a ratio a little less than that of the neighboring white popula- 
tion. The negro population is not altogether confined to the 
Southern states : there are about 400,000 in the states from 



§' 6] American Society. 1 1 

Maine to Pennsylvania, and 500,000 in the states from Ohio 
to the Dakotas. In two of the states in the Union, Mississippi 
and South Carolina, the negroes are in excess of the white 
population ; and in Alabama, Georgia, and Florida they are 
nearly equal. In general the negro population tends to con- 
centrate in the counties in which there is already the largest 
number of negroes, and the white population to move slowly 
into other parts of the same state. 

6. American Society. 

The final measure of national power is not numbers, or 
diversity of elements, but the character of the people. Are 
the Americans a people who have that sense of common inter- 
est, common standards, and common destiny which makes a 
strong and enduring race ? 

The most obvious and the most important social principle 
in America is equality of opportunity, — the right of every 
man and woman to do what he is by nature best fitted to do, 
and the corresponding right of every child to have such a 
degree of education as will give him the opportunity to show 
capacity for service to his kind. Hence, in a society which 
includes race and social elements of great diversity, which 
runs up the scale from poverty to unmeasured wealth, from 
the ignorance of the rudest peasant to the polish of the finest 
modern gentleman, there is always present the democratic 
idea that wealth, education, and distinction may come to that 
man who, whatever his beginnings, shows the power to make 
something of himself. 

In government, as in business, the beginner in America 
looks all along the road to the highest place. A larger part 
of the population is trained by some experience of government 
than probably in any other country, except perhaps Switzer- 
land. Offices small and great abound, and are commonly held 
for short terms ; most adult men have personal contact with 
the various forms of their government. Furthermore, politics 
are much affected by the great numbers and the physical 



1 2 Fundamental Ideals. t§ ^ 

power of the American people : it lies in the genius of the 
Americans to undertake great tasks ; they like to build trans- 
continental railroads and Isthmian canals ; they like to estab- 
lish land offices and Philippine commissions, expecting that 
they must succeed ; with confidence they organize immense 
municipalities and great national services. The variety of 
race elements undoubtedly leads to combinations of small 
groups : in many parts of the country, poUticians carefully cul- 
tivate the German vote, the Irish vote, the Scandinavian vote. 
To carry on a hotly contested election campaign in Wisconsin, 
political speakers must be provided with no less than fifteen 
languages if they are to reach all the voters; but it seems 
unlikely that these racial groups will long remain an element 
in American pohtics. 

American society is in a state of constant change. In few 
communities do the children live in the house in which their 
fathers were born ; people freely alter their calling, their 
street, their town of residence, their state : few communities 
have historical associations with the past. Hence Americans 
are always ready to take up experiments in government, and 
as ready to abandon a system which does not work to their 
minds. To a Frenchman it would seem impossible that in 
twenty years a city could have three charters ; or to a 
German that a state should five times completely revise its 
constitution in a century. Yet within this flexible and change- 
ful system of government there is a remarkable conservative 
instinct, which makes great changes in American government 
very slow : for instance, after the Civil War, the New England 
town system was introduced into some of the Southern states ; 
it simply died out for lack of soil in which to grow. Hence 
also the strong hold upon Americans of unwritten practices of 
government, — as, for instance, the widespread principle that 
a representative must live in the district which he represents. 
In general, American society with its democracy, its rapid 
movement, its eagerness to improve, and yet its strong hold 
upon the past, is well suited to the institutions which it has 



§ 6] American Society. i 3 

worked out. We shall find that American government is 
changeful and yet stable, elastic and yet firm ; and that 
respect for tradition and precedent and vested rights play 
almost as great a part in America as in such rigid and con- 
servative governments as England. 



CHAPTER II. 

THE INDIVIDUAL AND HIS PERSONAL RIGHTS. 

7. References. 

Bibliography: Channing and Hart, Guide (1896), §§ 146, 167, 186, 
202, 208; A. B. Hart, Manual (1908), §§ 99, loo, 150, 155, 177, 187, 192, 
201 ; E. McClain, Constitutional Law (1905), §§ 192, 197, 203, 206, 211. 

Conceptions of Personal Rights : E. McClain, Constitutional Law 
(1905), §§ 198-205; H. Brannon, Fourteenth Amendment (1901); J. W. 
Burgess, Political Science (1890), I, 174-252; T. M. Cooley, Constitutional 
Limitations (1890), chs. ix-xiii ; M. Hill, Liberty Documents (1901), chs. 
i-xii; B. A. Hinsdale, Am. Government (rev. ed., 1895), chs. xlvii, xlviii, 
J. K. Hosmer, Anglo-Saxon Freedojn (1890) ; E. Kelly, Government or 
Hutnan Evolution (1900) ; F. Lieber, On Civil Liberty attd Self Govern- 
ment (3d ed., 1874); J. Story, Cofftmentaries (1873, 1891), §§ 146-197, 
301, 304, 1858, 1905; J. B. Thayer, Cases on Constitutional Law (1895), I» 
1-47; J. A. Woodburn, A7n. Republic (1904), ch. i; J. A. Smith, Spirit 
of Am. Government (1907), ch. xi. T. M. Cooley, Constitutional Law 
(1898), ch. iv, §§ 3, 14, chs. xii-xvi; H. Von Hoist, Constitutional Law 
(1887), §§ 72-78, 84-87. 

Citizenship: E. McClain, Constitutional Law (1905), §§ 193-196; 
R. L. Ashley, Am. Federal State (1902), ch. xxix; J. W. Jenks, Citizenship 
and the Schools (1906), chs. i-iii ; W. H. Taft, Four Aspects of Civic Duty 
(1906); W. W. Willoughby, Constitutional System (1904), chs. xv, xvii; 
J. Story, Commentaries (1873, 1S91), §§ 1 103, 1104, 1693-1695, 1805, 
1806, 1928-1975; A. Shaw, Political Problems (1907), chs. ii, v; J. B. 
Moore, Digest (igoj) , III, §§ 372-486. G. S. Boutwell, Constitution (1895), 
chs. X, xxii,xxiii, xliv, liii-lviii, Ixiii, Ixiv ; I. B. Richman, Citizenship (Pol. 
Sci. Qiiar., V, 104-123, 1890) ; W. L. Scruggs, Ambiguous Citizenship 
{Lbid., I, 199-205, 1886). 

Personal Freedom: E. McClain, Constitutional Law (1905), §§ 212- 
216, 218, 219, 227-243; T. M. Cooley, Constitutional Limitations (1890), 
ch. x; J. C. Hurd, Law of Freedom and Bondage (1858-1862); R. C. 
Hurd, Habeas Corpus (1876); F. Lieber, On Civil Liberty and Self-Gov- 
ernment (1874), chs. vi, vii ; R. L. Ashley, Am. Federal State (1902), ch. 
xxiv ; B. Wendell, Liberty, Union and Democracy (1906), ch. ii; discus- 
sions on the Thirteenth Amendment in constitutional treatises. — 
Sources: M. Hill, Liberty Documents (1901), chs. viii. xxi-xxiii. W. 
MacDonald, &/f<:/ Charters (1904); Select Documents (1898); Select Statutes 
(1903)- 

14 



§ S] The Citizen and the Alien. 1 5 

8. The Citizen and the Alien. 

In a nation, the individual is not simply a social factor ; he 
is or may be a citizen, a constituent part of the state. Citizen- 
ship is simply recognized local membership in a political 
community, and carries with it great privileges and large 
responsibihties. Citizenship is a privilege which attaches not 
only to men, but to women and children down to the very 
youngest : convicts, paupers, insane persons, may be, and 
usually are, citizens, and as such are entitled to the care and 
protection of the state. By a statute of 1885, every woman 
married to a citizen of the United States is deemed a citizen. 
Citizens may or may not be voters, — only about one fifth of 
them have the right of suffrage ; they may or may not be sub- 
ject to military service ; but the weakest and the strongest, man, 
woman, and child, are equal in their inborn or acquired right 
to liberty, to justice, and to protection. For many purposes, 
such as holding and transferring property, suing and being 
sued, corporations are technically citizens. 

To the Roman in his day, or to primitive man, such as the 
American Indian, every person not in formal relations of friend- 
ship was a personal and natural enemy; but the growth of 
international trade, the visits of mariners, and the residence of 
merchants in foreign countries, throughout the civilized world 
cause the alien foreigner to receive large privilege of move- 
ment and of occupation. Any foreigner of good character, 
able to care for himself, is freely admitted into the United 
States, and the sea-board states have no right to prevent his 
coming. In 1900 there were in the country about 2,000,000 
alien adult men, and probably as many women, who had not 
acquired citizenship. The United States government possesses 
power to expel aliens ; but the only general statute ever passed 
for that purpose, the Alien Friends Act of 1798, was never put 
into execution. 

The alien may sue in the state and national courts ; he is en- 
titled to appeal to the government for the protection of his life 



1 6 Fundamental Ideals. [§9 

and property, to jury trial, and to many like privileges ; under 
the Homestead Act of 1862, Congress has given millions of 
acres of land to aliens ; in eleven states of the Union, an alien 
may under some circumstances vote, and even hold office ; and 
by practice and a succession of treaties, most of them are also 
entitled to liberty of conscience and worship, and may move 
about and trade at their will ; the only widespread restriction is 
against alien holdings of real estate. Socially and practically, 
no distinction is made between the foreigner who has never 
acquired United States citizenship, the naturalized foreigner, 
and the native-born citizen. 

A double citizenship arises out of the federal character of the 
government. In 1857, in the famous Dred Scott case, four 
judges affirmed that a person of African descent could not be- 
come a citizen of the United States, or a citizen of a state, in 
the sense of the constitution of the United States. This doc- 
trine was one of the main reasons for the passing of the Four- 
teenth Amendment in 1868, which provides that "all persons 
born or naturalized in the United States and subject to the 
jurisdiction thereof are citizens of the United States and of 
the state wherein they reside." This does not necessarily cover 
persons born in the organized territories, or born of American 
parents abroad, or minor children of unnaturalized foreigners. 
Thus, every citizen of the United States becomes a citizen of a 
state while residing in it ; but the states may confer all the 
privileges oi sidiiQ citizenship within their limits upon foreigners 
who have not yet become citizens of the United States. 

9. Acquirement and Loss of Citizenship. 

Membership in the community is acquired either by birth, 
by naturalization, or by annexation. In the practice of modern 
nations, one of two rules is usually followed : by the pis san- 
guinis, the children of citizens born abroad are thereby born 
citizens of the home country ; by the Jus soli, all persons born 
within a country are citizens, no matter what the nationality of 
the parents. 



§ 9.1 Acquirement and Loss. 1 7 

(i) While we adhere in general to the Enghsh doctrine of the 
jus soli for the children of aliens born in the United States, 
we claim for the children of Americans born abroad the jus 
sanguinis. Nevertheless, the children, of Americans residing 
abroad are often claimed by the foreign governments because 
born on their soil ; and hence such young people sometimes 
come to America to spend a few years about the time of their 
majority, in order to affirm their American citizenship. 

(2) The doubtful cases of citizenship almost all come from 
naturalization, which is the process of transferring personal alle- 
giance and political membership from one nation to another. 
In colonial times and under the Confederation, such transfers 
from foreign countries to the colonies, or from one colony or 
state to another, were frequent ; and each community decided 
for itself upon the methods and limitations of admission. The 
federal constitution of 1787 gave to the federal government the 
sole right to fix conditions of naturalization, and successive 
statutes have laid down the method and terms of citizenship. 

The period of minimum residence since 1795 has been five 
years (except from 1798 to 1802, when it was fourteen years). 
No matter how long a man has been in the country, he must 
formally file a " declaration of intention " at least two years 
before naturalization ; he must then prove by two witnesses 
that he has resided in the United States five years, is a man of 
good moral character, not an anarchist, and is attached to the 
constitution ; and he must by oath renounce his allegiance to 
his former country. His naturalization includes his wife and 
minor children. These formalities are easy, perhaps too easy, 
of fulfilment ; although Congress defines the method, any 
federal or state court may receive the proof and issue the 
certificate, and little pains is taken to verify the evidence. 

Naturalization is not the right of all races : no ahen Mon- 
golian, especially no Chinese, can be naturalized in the United 
States ; and no member of our own Indian tribes can get citi- 
zenship by naturalization, though he may by leaving the tribe. 

The naturalized citizen, so long as he remains in America, 



I 8 Fundamental Ideals. [§ 9 

is not likely to have any relations with his former govern- 
ment ; but thousands return to their country of origin to visit 
their friends, or on business. Until 1870 Great Britain always 
claimed such persons as still her subjects ; and when in the 
sixties the German system of enforced military service began, 
young men who had avoided that service and returned years 
afterwards with certificates of American naturalization were 
seized and punished for neglect of military duty. This diffi- 
culty led to a series of treaties, negotiated about 1868, under 
which the German governments agreed that if a German should 
be absent from his native country five years without showing 
an intention to return, he should thereby lose his German 
citizenship ; if he afterwards returned to Germany and re- 
mained there two years, the x\merican government agreed that 
he should thereby forfeit his newly acquired American citizen- 
ship. Both countries thus formally acknowledge the right of a 
man to change his membership not only once but twice ; and 
admit that a man may forfeit his citizenship by residence abroad 
without plain intention of returning. The same principle has 
been stated in treaties with many other countries. 

A curious class called " heimathlosen," or " homeless ones," 
have lost the citizenship of one country without acquiring that 
of another : thus the German who has lived in the United 
States five years without being naturalized loses his German 
citizenship, yet does not become an American ; hence in the 
United States or Germany or elsewhere in the world he is not 
entitled to ask for special protection from any power. 

(3) The third method by which citizenship may be acquired 
is the annexation of the country in which the foreigner resides : 
thus, when Louisiana and Florida came into the Union, it was 
provided by treaty that the inhabitants of the territory should 
be admitted as soon as possible to all the rights and advan- 
tages and immunities of citizens of the United States. Under 
a similar clause, persons who were citizens of New Mexico 
and California in 1848 became citizens of the United States 
through the transfer ; and thus the Zuni and other tribes of 



§ lo] Privileges and Obligations. 19 

Indians, by an exception to our usual practice, became, and 
their descendants remain, full citizens of the United States. 
By the treaty of 1899 for the cession of Porto Rico and the 
Philippines, the question of citizenship was left for settlement 
by act of Congress ; and Congress has not seen fit to incorpo- 
rate the people of those dependencies into full American citi- 
zenship. They have in that respect much the status of the 
American Indians. 

In some foreign countries there is a system called the civil 
death, by which a person convicted of a serious crime loses his 
citizenship and thus can no longer hold property or act as a 
member of the community ; and many foreign countries banish 
their own citizens. Absolute loss of citizenship as a penalty 
for crime does not prevail anywhere in the United States, and 
it is doubtful whether any state can legally expel one of its 
citizens. The only recorded case of banishment of a citizen 
by the United States was the' sending of C. L. Vallandigham 
across the border into the Confederacy during the Civil War ; 
and that was justified at the time only as a military measure. 

10. Privileges and Obligations of Citizenship. 

In many respects the alien has the same duties and the 
same rights as the citizen : he must obey the laws and pay 
taxes ; but all his privileges he holds subject to ejection. The 
citizen's rights, on the other hand, are based on long tra- 
dition amounting almost to an indefeasible right, on solemn 
limitations in the federal and state constitutions, and on 
federal and state statutes. 

( I ) A great privilege is that of protection : no individual 
may take the property or injure the person of a citizen without 
a criminal responsibility ; both the federal government and the 
states are by the federal constitution forbidden to deprive any 
person of life, liberty, or property without due process of law ; 
even under due process of law, governments may take prop- 
erty for public purposes only on just compensation. This pro- 
tection follows the citizen upon the high seas and into foreign 



20 Fundamental Ideals. [§ lo 

countries. An American abroad is subject to the laws of the 
country to which he goes, and he may be expelled from a 
foreign country exactly as the alien in the United States ; but 
while he remains he has, by the ordinary principles of inter- 
national law and by numerous treaties made in his behalf, the 
right to move about and carry on trade ; and he is entitled to 
the same treatment by foreign courts as is the foreigner in 
ours. Americans have also acquired the right, in most coun- 
tries throughout the world, to preach religious doctrines, and 
to convert such natives as their teaching may aifect. 

(2) The privileges of a citizen at home in America include 
a share in all that the state does for the individual. The citizen 
is entitled to an education at the expense of the state ; he is 
entitled to use the public roads, streets, and grounds, and to 
ride for the legal fare on the street railways, railroads, and 
passenger steamers ; if unable to support himself, the public 
must keep him from starvation ; if he goes insane, he is en- 
titled to the aid of the public asylum : the state exists for him, 
and he and his fellows are the state. 

The obligations of citizenship correspond with the advan- 
tages, (i) First, the citizen is held responsible to national, 
state, and local laws. If he commits crimes or misdemeanors, 
he must submit to trial, and, if convicted, to punishment ; if 
called upon, he must aid the public authorities in keeping 
order. (2) Another obligation of consequence is that of 
military service. Every state may require its adult able- 
bodied male citizens to serve in the mihtia for the defence of 
the state government ; and the federal government may call 
upon any such person to serve in the national army for de- 
fence or offence. In the Civil War, thousands of men, both 
North and South, were chosen by draft to enter the armies. 
(3) The Civil War distinctly brought out the obligation, if there 
be any conflict of authority, to obey the national government 
against a foreign nation or against a city or a state. Although 
for his share in that contest no person was convicted of trea- 
son, nothing can be more certain than that in future coUisions 



i III Anglo-Saxon Liberty. 2i 

of authority, the federal government will hold responsible with 
their lives persons who may refuse to obey on the ground that 
they are directed to the contrary by their state. 

(4) Another obligation of many citizens, not enforceable by 
law, is to take part in the government in public elections. The 
right to vote is not an incident, but a privilege conferred on 
some citizens or even aliens. Yet citizens who are not voters, 
including many minors, can take an intelligent interest in pub- 
lic affairs, and can join in protest against the appropriation of 
public benefits by a few persons. 

(5) Another moral obligation of citizens is to reach their 
political ends through the peaceful process of choosing men to 
represent them who will bring about the desired reforms. The 
punishment of criminals must be intrusted to the courts ; the 
redress of abuses to city councils, legislatures, and Congress. 
Riots and violence and mobs in behalf of a good cause simply 
encourage like irregular methods in behalf of a bad cause. 

11. History of Anglo-Saxon Liberty. 

Citizenship does not necessarily mean freedom : subjects of 
the czar of Russia or of the sultan are citizens. Even in coun- 
tries where there is popular participation in government, the 
individual may be legally subject to forms of arrest, imprison- 
ment, trial, and punishment which seem to us unjust. Men of 
the English race have a tradition of freedom from arbitrary 
acts by officers of civil and military government, such as has 
never been known in the previous history of the world. 

The rights of Enghshmen are partly traditional : in part 
they are expressed in a succession of great royal grants and 
acts of Parliament. In the charter of King Henry I, in iioo, 
he promised not to lay " an arbitrary mulct of money " upon 
wrongdoers. King John, in the great Magna Charta of 12 15, 
consents that " a freeman should not be amerced for a small 
offence, but only according to the degree of the offence " ; and 
that " No freeman shall be taken or imprisoned or disseised, 
or outlawed, or banished, or any ways destroyed, nor will we 



22 Fundamental Ideals. [§ n 

pass upon him, nor will we send upon him, unless by the law- 
ful judgment of his peers, or by the law of the land. We will 
sell to no man, we will not deny to any man, either justice or 
right." 

These privileges were at first secured, not for Englishmen 
in general, but for the great nobles who owned the land and 
who alone could assist in making the laws ; but gradually 
they were extended to the commonalty, and came to include 
the two mighty principles that a sovereign may be forced by 
the moral pressure of his people to deny himself arbitrary 
power ; and that a grant made by one sovereign is binding 
upon his successors. By 1500 the system of jury trials was 
well established ; and during the great struggle with the 
Stuart kings, from 1604 to 1688, the rights of the individual 
were stated in the Petition of Right (1628) ; the Agreement 
of the People (1649), ^^^"^ other attempted written constitu- 
tions of the English Commonwealth ; in the Habeas Corpus 
Act of 1679 ; and in the Bill of Rights of 1689. The princi- 
pal rights thus enumerated are the freedom of the individual 
from arbitrary money exactions, from the quartering of soldiers, 
from martial law for civilians, from compulsion to go on for- 
eign military service ; especially from arrest and confinement 
without a charge of crime, and from cruel and unusual methods 
of trial and punishment. 

Our colonial forefathers brought over most of these great 
individual rights, and participated in their extension in Eng- 
land after colonization began ; they had also early charters 
and instructions to governors, under which they enjoyed ex- 
press freedom from arbitrary executive and judicial power. 
In the Declaration of Rights and Grievances in 1765, the 
Stamp Act Congress declared that " his majesty's liege sub- 
jects in these colonies are entitled to all the inherent rights 
and privileges of his natural born subjects within the kingdom 
of Great Britain." 

Notwithstanding occasional unjudicial trials and cruel pun- 
ishments, like those of the Quakers, the colonies enjoyed 



§12] Rights of Personal Freedom 23 

greater individual freedom than Englishmen at home. When 
the first state constitutions were framed, from 1776 to 1780, 
they formulated these accumulated rights : for instance, free- 
dom from arrest except on warrant, the right to be confronted 
with accusers and witnesses, the freedom of the press, and 
the exercise of government for the common benefit of the 
community. The Declaration of Independence in 1776 pro- 
tested against the quartering of troops, the imposition of 
taxes without consent of representatives, and the withdrawal 
of trial by jury. The Ordinance of 1787 guaranteed to the 
people of the Northwest Territory the right of habeas corpus 
and of trial by jury, and restated some of the clauses of the 
Magna Charta. The federal constitution includes clauses for 
the maintenance of habeas corpus, for the freedom of religion 
and of speech, for the right to bear arms and to petition, for 
public trial by an impartial jury, and for freedom from cruel 
and unusual punishments, from quartering soldiers, and from 
bills of attainder and ex-post-facto laws. 

These fundamental restrictions protect the citizen not only 
against officers of government, but against the community itself; 
and they have been enlarged by many state and national consti- 
tutional amendments, and by the practice of a century. Thus, 
the Thirteenth and Fourteenth Amendments absolutely forbid 
human slavery, and also protect against unlawful deprivation 
of life, liberty, and property through the action of any state 
government. These guaranties have spread wherever there 
are English colonies ; they have profoundly affected the prac- 
tices of other nations of Europe and of America ; and to-day 
the conception of inborn human rights, of which no individual 
can be deprived, is the foundation of the whole political and 
social system within the United States of America. 

12. Rights of Personal Freedom and Habeas Corpus. 

The first of all the rights of the individual is personal free- 
dom ; yet it was for centuries studiously violated in America 
by the system of slavery. From the beginning of colonial 



24 Fundamental Ideals. t§ 12 

history, Indians were made slaves; in 16 19 began the system 
of negro slavery in Virginia ; and throughout the colonial 
period, and even later, white persons were sold to masters as 
"indentured servants " for terms of years or for life. 

Beginning with Vermont in 1777, many of the common- 
wealths prohibited slavery within their borders. Congress 
prohibited slavery in the Northwest Territory in 1787, and 
in other areas in 1820, 1845, and 1848, January i, 1863, 
President Lincoln declared that slavery would no longer be 
recognized within the lines of the Confederate army ; and in 
December, 1865, the Thirteenth Amendment was added to the 
constitution, by which " Neither slavery nor involuntary servi- 
tude, except as a punishment for crime whereof the party shall 
have been duly convicted, shall exist within the United States, 
or any place subject to their jurisdiction," When the Philip- 
pines were annexed in 1898, slavery existed in the Sulu Islands ; 
but from the moment of cession it ceased, under this provi- 
sion, to have any legal existence, and any person claiming his 
freedom there is entitled to the protection of the government. 

Some exceptions to this system of universal freedom exist : 
children are not free, but the authority of their parents is sub- 
ject to the control of laws, and children are frequently taken 
by the courts away from the custody of cruel or neglectful 
parents ; insane people may be restrained of their liberty for 
their own protection and that of the community, and to give 
them an opportunity for recovery ; paupers who require the 
support of the state are commonly much restricted of their 
liberty ; and convicts are in many ways slaves of the state 
during their term of confinement, though they should be pro- 
tected by rigorous laws prescribing humane treatment. In 
some Southern communities, convicts are hired out in gangs, 
generally controlled by state officials ; and there have been 
cases in Mississippi in which criminals have been sold for a 
term of service to farmers who were to have " full and com- 
plete power to control and discipline such prisoners." In a 
few states, the service of vagrants may also be sold for brief 



§ 12] Rights of Personal Freedom. 25 

periods to private individuals. Both practices are contrary to 
the Thirteenth Amendment. 

A person physically and mentally capable of taking care 
of himself, and not under punishment for crime, cannot be 
compelled to render any personal service or to remain in any 
particular place ; nobody can legally contract to give another 
person power to restrain him of his liberty. 

Personal freedom includes the right to move freely from 
place to place and from state to state. To this general prin- 
ciple there are some important and increasing exceptions : the 
states may prevent the coming in of a person who would be 
dangerous to the health of the community ; and paupers are 
often moved back and forth to the communities from which 
they originally came, without the consent of the persons con- 
cerned. Furthermore, the United States does not recognize the 
right of natives of dependencies to pass to the main country. 
Chinese may travel unimpeded from San Francisco to New 
York, but no Chinaman may travel from the Philippine Islands 
to San Francisco ; and if there should be a considerable 
movement of the Porto Ricans or the Filipinos to the conti- 
nent. Congress would probably prevent it by law. In many 
Southern states, members of the negro race are practically not 
free to move where they will : in cases where they have at- 
tempted to emigrate to the West, their steamers have been 
stopped and they have been compelled by shotguns to return 
lest the Southern communities should be deprived of work- 
men ; on the other hand, there are counties in the South in 
which no negro is allowed to set his foot, on pain of being 
shot without trial. 

One other exception to this principle must be noted, — 
namely, the right of the state to imprison people who are 
charged with crime, until they can be brought to trial. To pre- 
vent indefinite confinement without a test of guilt, very ancient 
English statutes, which appear in some form in the laws of all 
the states, provide that no person shall be arrested except on 
reasonable suspicion of crime, which must be set forth in a 



26 Fundamental Ideals. [§ 12 

regular warrant specifying the person and the crime. Until 
about 1830, a person might also be arrested in any state in the 
Union if he could not pay his debts ; but the system has now 
nearly disappeared. 

When arrested on a proper warrant, in most cases bail will 
be accepted by the courts ; that is, persons supposed to be 
pecuniarily responsible will agree to forfeit an agreed sum if 
the prisoner shall not appear in court at the proper time. In 
case of aggravated, crime, or where there is manifest danger 
that the presumptive criminal will run away, bail is refused, 
and hence presumably innocent persons may spend months in 
jail before trial. In some states important witnesses are also 
detained, for no other fault than that they know something 
about the case. 

Several ancient methods of testing whether a person was con- 
fined under a proper charge grew up in England ; and in 1679 
the English Parliament provided a better remedy in the great 
Habeas Corpus Act. In effect it provided that any person who 
thinks that he or another is unjustly imprisoned may represent 
the facts to a court, which will then issue a writ of habeas corpus, 
directing whoever may have in custody the person described in 
the writ to produce such person in open court (unless charged 
with treason or felony) and state the reason for his detention : 
thus, the head of an insane asylum may be compelled to bring 
his patient before the court and show whether he has complied 
with the legal method of finding out whether the person is 
insane. The court of review decides whether law can be 
shown for the arrest and detention. In 1807, President 
Jefferson tried to hold BoUman and Swartwout on suspicion of 
complicity in the Burr rebellion ; and Chief Justice Marshall 
set them free, because they had been arrested by the military 
without proper warrant. Under our federal system, justices of 
state courts sometimes grant the writ of habeas corpus in cases 
of arrest by United States officials ; and justices of United 
States courts issue it for state prisoners. These cases of con- 
fusion are generally settled by appeal to the Supreme Court of 
the United States. 



§ 13] Political and Religious Opinion. 27 

Habeas corpus may be suspended in case of civil war or of 
foreign war ; it was so suspended during tlie Civil War, and 
nearly thirty thousand persons were arrested without any proper 
warrant, frequently on mere suspicion. President Lincoln took 
the responsibility for this suspension, which eventually ex- 
tended to places very remote from the seat of war ; and Con- 
gress, in 1863, passed a kind of indemnification act. It is the 
opinion of most publicists now that habeas corpus cannot be 
suspended except by act of Congress, and that most of the 
arbitrary arrests from 186 1 to 1865 were unnecessary and 
harmful to the administration. 

13. Rights of Political and Religious Opinion. 

Of all the activities of mankind, the only one that is abso- 
lutely beyond the control of other men is the inner belief, the 
conviction that some things are and other things are not. No 
government and no church has the physical power to discover 
what people are thinking about ; by force of torture men may 
be compelled to reveal their secrets, but the extremest physi- 
cal violence will not induce a blind man to believe that he has 
sight. Nevertheless from the dawn of civilization, churches 
and governments have busied themselves with impalpable 
beliefs, as though they were physical acts. From the theory 
that the state or the church, or both combined, have power to 
punish people for believing in their hearts what the authorities 
do not believe, our ancestors have come all the long road to 
the widest freedom of thought ever known to mankind. For 
it is the principle of American government, expressed both in 
federal and state constitutions, that every man has the freest 
liberty to beheve what he considers the truth. 

American liberty goes further : it includes the right to 
express opinions in private conversation and in public utter- 
ance, so long as one does not undermine the morality of the 
community or incite other persons to violent actions ; and to 
induce other people to join in the statement of a supposed 
truth. 



28 Fundamental Ideals. [§ 13 

By centuries of conflict, our ancestors earned the right to 
petition pubUc authorities for redress of grievances, including 
the assembling to discuss common grievances and to formulate 
a joint statement, — that is, the right of public meeting. In 
other countries, assemblages are allowed only by favor : in Ber- 
lin, for instance, it is contrary to the law for several persons to 
join in conversation on the streets ; and luckless Americans are 
sometimes arrested for exchanging too long a good-night. In 
the United States the mass-meeting is recognized as one of 
the most effective ways of influencing public opinion. Ameri- 
cans habitually send petitions to members of the local, state, 
and federal governments, and frequently are allowed to attend 
public hearings of legislative committees or of administrators, 
in order to present their views. 

The liberty of private utterance extends to the press, al- 
though the emancipation of the newspaper was slowly accom- 
plished. The Zenger case in New York in 1735 settled the 
question in the colonies. We have not, as in France, a deposit 
of a guaranty fund by the proprietors of the paper; here 
responsibility comes only after publication. We have never 
had a censorship, except during the Civil War, when attacks 
on the government were prohibited. The only federal enact- 
ment on that subject, the Sedition Act of 1798, proved one of 
the most short-lived of statutes. Our theory is that of Crom- 
well : when a critic was arrested, the Protector set him free 
with the words, " Let him take his notes. If my government 
is made to stand, it has nothing to fear from paper shot." 
Some newspapers take scandalous advantage of the liberality of 
their government by prying into the details of private lives, by 
unjustified attacks upon the motives of public servants, and 
by the publication of gross and degrading criminal news ; but 
one of the greatest causes of discontent is removed when people 
may freely express their opinions and their dissents. It is 
usually to the interest of the newspapers to expose public 
wrong-doing, and therefore they are one of the most powerful 
influences toward upright public service. Any man who slan- 



§ 14] Right to Fair Judicial Proceedings. 29 

ders another, or by false and malicious libel excites the com- 
munity, may be punished through the courts. 

Freedom of thought includes the inestimable right of reli- 
gious opinion, one of the most significant achievements of the 
American people. The right includes the right to express an 
absence of religious belief so long as it is not blasphemous. 
Even our Puritan ancestors hanged people for practising an 
unpopular religion ; but the federal constitution obliges the 
federal government not to make any religious establishment or 
to fix any religious qualification. Most of the states have 
asserted the same principle for themselves in their constitu- 
tions. The question of the advocacy of such a religious 
doctrine as polygamy is a very difficult one. In 1887 the 
United States government formally dissolved the so-called 
Church of Jesus Christ of Latter Day Saints, and confiscated 
the church property, on the ground that polygamy was not a 
religious belief. 

14. The Right to Fair Judicial Proceedings. 

The object of courts is to apply the laws, and to discover 
the truth in contested cases. Where criminal acts are charged, 
or even in civil suits, the courts must have power to compel 
the attendance of suitors or their counsel and of witnesses, and 
to make decisions, under which the custody of property or of 
persons may be transferred. Our whole machinery of justice 
is intended to give a speedy, fair, public, and unbiassed trial to 
every person charged with a crime ; it is even a presumption 
that a man is innocent of a crime until he is proved to be guilty. 

The federal constitution protects the people against unreason- 
able search and seizures, and requires specific warrants ; and 
the state constitutions have similar clauses. Tools of trade are 
usually exempt from legal seizure, and in certain states the 
homestead cannot be levied on. The detailed provisions in 
the federal constitution with regard to judicial trials apply only 
to federal suits. They provide that a man can be tried only 
on an indictment or a similar charge of guilt ; that he must be 



3© Fundamental Ideals. [§14 

tried by a jury in the criminal courts, and also is entitled to a 
jury in civil suits at common law where the value in contr j- 
versy shall exceed twenty dollars ; that no person can be cc/m- 
pelled to witness against himself, or be twice put in jeopardy 
of life or limb ; that he must have speedy and public trial in 
the district wherein the crime shall have been committed. 
These provisions are repeated or imitated in most of the state 
constitutions. 

Constitutional clauses do not protect a person against false 
testimony or a violent judge or a prejudiced jury, but they 
put in the hands of the innocent person proper means of 
establishing his innocence. Furthermore, no person can be 
punished by the United States courts for a crime defined by 
ex-post-facto law, — that is, a law made after the act was 
committed j and he cannot be subjected to cruel or unusual 
punishments. Torture is absolutely excluded from our juris- 
prudence, either to ascertain evidence, or as punishment. 

The publicity of trials, the notice usually taken by the news- 
papers, and the power of the courts to set aside jury findings 
which seem contrary to the evidence, make it difficult to con- 
vict an innocent person, although they may also make it easy 
for a guilty man to escape. The great hardship and injustice 
under our present system is the long postponement of criminal 
trials ; and then the tedious proceedings, often lasting for 
weeks and months, wearying the jury almost past endurance, 
and overloading their minds with a mass of evidence on which 
they cannot discriminate. 

The Fourteenth Amendment, which prohibits the taking- 
away of life, liberty, or property without due process of law, 
under colour of a state statute, makes it difficult for the states 
to set up an arbitrary government. Of course no judicial 
system covers cases of mob violence, in which evidence is dis- 
carded and passion becomes judge. Private justice belonged 
to a ruder age. The mark of civilization is the willingness 
to leave to orderly judicial proceedings the punishment even 
of the worst crimes. 



§15] Dependent People. 31 

15. Rights of Dependent People and Colonists. 

At the time the constitution was framed, in most of the states 
in the Union negroes, whether slaves or free, were politically 
inferior ; they were not entitled to the usual privileges of suf- 
frage or free movement or to the use of the courts. As late as 
1857, Chief Justice Taney said that, when the constitution was 
founded, people held that the negro " had no rights which the 
white man was bound to respect." The Fourteenth Amend- 
ment was inserted into the constitution, in 1868, expressly to 
remove the discrimination between the races ; and the prin- 
ciple was further extended by the Fifteenth Amendment, so 
that the right of citizens of the United States to vote, " shall 
not be denied ... on account of race, color, or previous 
condition of servitude." So far as the law can put them on 
an equal basis, the negroes are entitled to exactly the same 
civil rights as the white man ; and they apparently have most 
of their judicial rights. 

Another race under a special dispensation is tTie Indians, 
who from the foundation of the colonies have not been con- 
sidered members of the political community. They are wards 
of the nation, and so long as they remain with their tribes have 
only such personal rights as may be conferred upon them by 
treaty or by act of Congress. 

Another class of dependents is the insane, paupers, and 
orphans, who are wards of the state ; they are entitled to and 
receive special consideration from the state, and special protec- 
tion through officials. 

The most serious question of dependent people has been 
presented by the recent annexations of island territory to the 
United States. Have the people outside the boundaries of 
organized states the same rights under the federal constitution 
as those within such states? When the territories were first 
organized, in 1784 and 1787, it seems to have been assumed 
that the residents had the rights of Americans ; as fast as new 
territory was annexed, it was speedily brought, sometimes by 



32 Fundamental Ideals. [§ i6 

treaty, sometimes by specific act of Congress, within the 
clauses of the constitution which provide for personal liberty. 
The new island possessions, however, have not as yet been 
distinctly placed under the genius of the constitution. In the 
Philippine Islands, Congress has not thought fit to apply pre- 
vious indictment or trial by jury, but has enacted the right to 
be protected in life, liberty, and property except by due proc- 
ess of law. Apparently, within the jurisdiction of the United 
States, there may be millions of persons who are not entitled 
to the constitutional provisions of personal liberty because it is 
supposed that they are not qualified to enjoy them. But those 
clauses are not inserted in the constitution simply for the bene- 
fit of the weak and defenceless ; they are there for the defence 
of society, and it is more important to the inhabitants of the 
states than to the dependent peoples themselves that the people 
in distant possessions should have justice and freedom. 

16. Political and Social Rights. 

In most states of the Union, about one fifth of the popula- 
tion are voters. Inasmuch as the suffrage practically carries 
with it the opportunity to be a candidate for office, the wide 
extension of suffrage confers great privileges by opening up a 
possibility of distinction. 

The only distinct statements on social rights in the federal 
constitution are the two clauses forbidding the grant of titles 
of nobility by the United States or by a state. But the prin- 
ciple of American law is that all people are equally entitled 
to public advantages, such as parks, public libraries, public 
schools, municipal gas and water privileges ; and that they are 
also entitled to use private agencies established under super- 
vision of the state for common use, such as railroads and other 
means of transportation, hotels, and places of amusement. 

Nearly excluded from social rights are the negroes in the 
South : from time immemorial the members of that race, free 
as well as slave, have not been allowed the equal use of public 
or semi-public resorts. A statute passed by Congress in 1875, 



§ i6] Political and Social Rights. 33 

for the protection of negroes in such cases, was disallowed by 
the Supreme Court. Negroes are admitted to few of the 
hotels, North as well as South, and frequently are not allowed 
on Pullman cars. Most of the Southern states provide separate 
accommodations on trains for negroes and white people, pro- 
vide separate schools, and forbid the negroes to use the public 
libraries or to enter other than certain specified parts of 
theatres. In the North there is usually no objection to any 
clean and well-disposed person entering a public conveyance 
or a place of amusement. 

When it comes to a question of social intercourse, gentlemen 
and ladies choose friends and associates for themselves : there 
can be no system of legislation that compels A to invite B to 
his house, or to treat him in a friendly manner. The farthest 
point reached by the law is that the objection of A shall not 
prevent B from use of public facilities ; and the farthest social 
right that can be claimed, without bringing down the denuncia- 
tion of the community, is the right of C to invite B and treat 
him as a friend, whether A would invite him or not. 



CHAPTER III. 

THE FRAME OF GOVERNMENT. 

17. References. 

Bibliography: Channing and Hart, Guide (1896), §§ 142, 146, 147, 
149, 154-156, 159; A. B. Hart, Manual (1908), §§ 31, 32," 97, 98, 136, 137, 
142, 147, 158, 199, 203, 285, 287; E. McClain, Constitutional Law (1905), 
§ 8; list of sources, in New England History Teachers' Association, 
Historical Sources in Schools (1902), § 77. 

Constitution Making : J. A. Jameson, Constitutional Conventions 
(4th ed., 1887); E. McClain, Constitutional Law (1905), §§ 9-13; A. C. 
McLaughlin, Social Compact {Am. Hist. Rev., V, 467-490, 1900); W. W. 
Willoughby, Nattire of the State (1896); J. Story, Commentaries (1873, 
1891), §§ 272-280, 1826-1831 ; R. Foster, Commentaries (1895), I, 
§§ 8-10; B. A. Hinsdale, Ai?t. Governmejtt (rev. ed., 1895), chs. vii-x; 
R. L. Ashley, Am. Federal State (1902), §§ 72-116; S. G. Fisher, Evolu- 
tion of the Constitution (1897) chs. i-iv ; J. A. Kasson, Evolution of the 
Co7istitution (1904), chs. i-iv; C. E. Merriam, Am. Political Theories 
{1903), ch. iii ; J. A. Woodburn, Am. Republic (1904), ch. ii ; C. H. 
Van T5'ne, Am. Revolution [Am. Nation, IX, 1905), ch. ix; J. Bryce, Am. 
Commonwealth (ed. 1901), I, chs. iii, xxxi, xxxii. 

Federal Convention of 1787 : A. C. McLaughlin, Cotzfederatiott and 
Constitutio7i {Am. Nation, X, 1905), chs. xi-xviii; G. T. Curtis, Constitu- 
tional Hist. (1889-1896), I, 257-697 ; A. B. Hart, Formation of the Union 
(8th ed., 1897), ch. vi ; J. H. Robinson, Original and Derived Features of 
the Constitution (1890) ; J. F. Jameson, Essays in Constitutional History 
(1889); S. G. Fisher, Evolution of the Constitution (1897); J. Story, Co7)i- 
mentaries ^I873, 1891), §§ 272-281; R. L. Ashley, Ain. Federal State 
(1905). §§ 106-120; J. A. Kasson, Evolution of the Constitution (1904), 
chs. v-x; A. Johnston, Pol. Hist. (Woodburn ed., 1905), I, ch. v. — 
Sources: A. B. Hart, Contemporaries (1897-1901), III, §§ 54-82; M. 
Hill, Liberty Documents (1901), ch. xvii ; Atn. Hist. Leaflets, Nos. 8, 18, 
28, 30; J. Elliot, Debates on the Federal Constitution (5 vols., 1836-1845) , 
W. M. Meigs, Growth of the Constitution (1900); C. E. Stevens, Sources 
of the Constitutiojt (1894). 

Amendment of Constitutions: E. McClain, Constitutional Lazu 
(1905), § 14 ; C. Borgeaud, Adoption and Amendment of Constitutiotis { 1895), 
parts i, iii; J. Story, Cotnmentaries (1873, 1891), §§ 1826-1831 ; E. P. 
Oberholtzer, Referendum in America (1900), chs. iii-vi ; J. Bryce, Am. 

34 



§ 1 8] Sovereignty. 3^ 

Commonwealth (ed, 1901), I, chs. xxxii, xxxvii, xxxviii; H. V. Ames, 
Amendments to the Co7istitution (Am. Hist. Assoc, Papers, V, 253-263, 
1891); J. W. Burgess, Political Science (1890), I, 137-154; J. A. Kasson, 
Evolution of the Constitution (1904), ch. xi ; J. W. Garner, Amendtnent 
of State Constitutions (Am. Pol. Sci. Rev., I, 213, 1907); G. T. Curtis, 
Constitutional History (1889-1896), II, ch. vi. 

Text of Constitutions : State : B. P. Poore, Charters and Constitu- 
tions (2 vols., 1878) ; F. B. Hough, American Co7istitutions (2 vols., 1872). 
— Annotated federal: A. J. Baker, Annotated Constitution (1891); J. F. 
Baker, Federal Constitution (1887), 95-117; G. W. Paschal, Constitution 
(1868); R. Desty, Constitution (2d ed., 1887); G. S. Boutwell, Constitu- 
tion (1895), 33-71 ; Revised Statutes (1878), 17-32. — A convenient leaflet 
text of the federal constitution (verbatim) is in A7nerica7i History Leaflets, 
No. 8. 

18. Sovereignty. 

The conception of personal rights which are not bestowed 
by a government, but inherent in organized society, has pro- 
foundly affected the American theory of the nature of govern- 
ment and the proper organization of government. From the 
beginning of colonization to the present time, the usual basis 
of American political thought has been that government is a 
necessary evil, something to be guarded, circumscribed, and 
checked. Our forefathers had a wholesome terror of absolut- 
ism, and strove to protect themselves against it, not only by 
carefully devised systems of government, but by theories which 
denied the possibility of absolutism. Yet no fact can be 
plainer than that in every organized community a part of the 
people exercise authority over the remaining part ; and that 
there is no practical limit to the extent of such authority, 
except physical force. 

To this ultimate power of compelling individuals to accept 
the will of others within an organized state, we give the name 
"sovereignty." The sovereign power extends to all the func- 
tions that can be performed by organized society, and espe- 
cially to such functions as can be performed only by some 
central organism. War, foreign treaties, taxation for public 
purposes, criminal jurisdiction, the personal service and obe- 
dience of the individual, — these things are objects of the sov- 
ereign power. Sovereignty is simply the ultimate expression 



36 



Fundamental Ideals. [§ 



of the public will ; and the legal sovereign is that individual 
or combination of individuals, within the acknowledged forms 
of the government, which formulates and applies the power of 
the nation. 

The notion of an absolute power over the lives and property 
of individuals is repugnant to the modern exaltation of the 
individual ; and in various ways throughout the world the phys- 
ical possibility of absolutism is softened and put into the 
background by various devices of governmental organization 
and by the growth of a humane and philosophic spirit. All 
human governments must be carried on by the one, the few, 
or the many, — by the despot, the oligarchy, or the democ- 
racy ; and in all three types there are practical limitations on 
an absolute use of power. The czar of Russia emancipating 
the serfs, the French Directory putting down the sections, 
our forefathers dealing with the Tories, — all found that they 
must work through human agencies and that they were re- 
strained or weakened by public opinion. 

The oligarchic government of the so-called Greek, Roman, 
and Venetian republics, and of England down to 1830, were 
kept within bounds partly by internal differences of opinion, 
and in England mainly by the inevitable participation of 
the middle class in government. Despotism is tempered not 
only by assassination, but by the practical necessity of getting 
things done through agents : Alexander the Great was absolute 
master of the people whom he conquered, but he was not 
sovereign over his own army. 

19. Sovereignty of the People. 

The common phrases, " the people " and " consent of the 
governed," suggest the distinguishing mark of popular govern- 
ment which makes the legal constitutional depository of sover- 
eignty nearly correspond to the physical possessor of ultimate 
power. Where nearly all adult men can vote, the majority 
which decides questions has presumably the preponderant 
strength necessary to carry out its will ; hence sovereignty of 



§ 19 J Sovereignty of the People. 37 

the people avoids many of the shocks and revolutions which 
under other forms are necessary to enforce the truth that in 
the long run a minority cannot impose its will on a majority. 
Yet the government of the many must be carried out by the 
few ; and for a time the majority may yield to a small num- 
ber of determined men, better armed or better organized or 
simply in possession. 

The long and bitter experience of mankind shows the ne- 
cessity of protecting the minority, or the apathetic and dis- 
organized majority, by such a formal statement of principles as 
may cause the powerful to hesitate before applying the ultimate 
test of sovereignty, namely, the possession of superior force. 
Tradition, law, and especially definite and written constitutions, 
compel usurpers to confront vested rights and prejudices which 
are immense social forces ; hence the modern, and especially 
the American, practice of multiplying checks on the methods 
and extent to which the sovereign power shall be exercised. 

One such check is the doctrine of the compact, — very 
familiar at the time of the Revolution, — which was in effect 
that government was founded on an agreement between those 
who exercised power and those on whom it was exercised, and 
that to violate the tenor of the agreement would justify resist- 
ance. Another form of stating the same thing is the doctrine 
of indefeasible personal rights, which cannot be destroyed by 
any act of sovereignty : the doctrine does not in itself save 
men from arbitrary imprisonment, but it causes their oppres- 
sors to be objects of suspicion and dislike. The doctrine of 
constitutional limitations on government is a way of preventing 
occasions for dispute ; and the doctrine of checks and bal- 
ances attempts to provide an automatic machinery which shall 
sound an alarm at encroachments by members of the govern- 
ing class on others of the same class. Underlying all these 
ideas is the fundamental doctrine of revolution, — that is, of 
the moral right of the governed to take arms and try to prove 
their power as a sovereign majority, if the impalpable restric- 
tions on government are not observed. 



38 



Fundamental Ideals. [§ 20 



This conception denies the sovereignty of those who exer- 
cise government, and puts it back on those who have the 
right, within legal forms, to create restrictions on sovereignty. 
If, therefore, we can discover who has the ultimate legal power 
to make and alter constitutions, we have found the ultimate de- 
pository of sovereignty. In England, such a power rests in the 
peers of the realm and the constituencies of the House of Com- 
mons. In France, it rests in the electors of the Chamber and 
the Senate, acting in a joint convention. In the United States, 
the ultimate sovereign is the body of persons who, acting 
through two thirds of the members voting in the two houses 
of Congress, and through majorities of members voting in the 
two houses of the legislatures of three fourths of the states, 
may amend the federal constitution. 

20. Representative Government. 

Another vital question is, Through what medium shall the 
popular will be expressed ? A direct democracy in which all 
the participants may meet together is the simplest, and comes 
nearest the exercise of popular sovereignty. Such direct gov- 
ernments are possible only in small communities. In the 
canton of Appenzell, for instance, on election day ten thousand 
men assemble, each girt with a sword, and vote for their offi- 
cers viva voce. The New England town-meetings in colonial 
times and in the country towns to-day are the best examples 
of such a direct democracy. 

No such government can possibly work in a large community, 
and the method of representation has been devised to permit 
the expression of the popular will. Representation by voting 
delegates was unknown in the ancient world. In the Middle 
Ages the imperial free cities sent delegates to the Reichstag ; 
but they were instructed ambassadors, saying what was put 
into their mouths by their principals at home. Perhaps the 
first germs of the true representative system, in which dele- 
gates once chosen act upon their own judgment, are to be 
found in the thirteenth century in the introduction of county 



§ 2i] Representative Government. 39 

and then of city members into the EngUsh ParHament. Even 
then, for a long time, the intention was to represent inter- 
ests — land holders, the trading classes, and so on — rather 
than individuals. Only in the nineteenth century has the 
principle of representation been pushed to its farthest logical 
extent, — namely, that every aggregation of a thousand people 
is entitled to the same representation as every other thousand 
people in local, state, and national legislatures. 

21. English Precedents of Free Government. 

Popular government, therefore, combines several concep- 
tions : (i) the right and dignity of the individual ; (2) a frame 
of government which will allow so large a participation as to 
make the legal sovereign correspond closely to the actual sover- 
eign ; (3) a restricting constitution to protect the rights of the 
minority ; and (4) a representative system under which the 
wishes of a numerous body of persons may be practically voiced. 

The free institutions of America to-day are often traced to 
the free customs of the ancient Germans. Our knowledge of 
the Germans comes almost entirely from a few pages in Caesar's 
Gallic War, and from an incomplete manuscript of the Ger- 
mnnica of Tacitus, who says that '' in important affairs all the 
people were consulted, although the subjects were discussed 
beforehand by the chiefs." We have no positive evidence that 
German institutions were conveyed over into England by 
the Saxons in the fifth century. We know very little of the 
Saxon governments previous to the Norman Conquest : there 
were townships with a meeting of freemen ; there were local 
assemblies, the hundred-moots and the folk-moots (including 
shire-moots) ; a king who was merely a leader ; later there 
was a witenagemot, or national council of the great nobles and 
the clergy. After the Conquest of 1066 appeared the Great 
Council; but not until 1254 did representatives come from 
the counties, and not till 1265 from the towns. From that 
time to the present day, the English Parliament has contained 
both commons and nobles, and has recognized the principle 



40 Fundamental Ideals. [§ 21 

of the representation of communities which cannot attend 
en masse. 

Up to the Stuarts, ParHament was still much under the control 
of the crown : Queen Elizabeth once informed the speaker of 
the Commons that " liberty of speech was not to speak everyone 
what he hsteth or what cometh into his brain to utter." In 
the seventeenth century, just while the American colonies were 
being founded, the people of England fought out once for all 
the question of the divine right of kings as against the right of 
the people to govern through their representatives ; and the 
representative House of Commons gradually pushed to the 
front as superior to the hereditary House of Lords. The Peti- 
tion of Right of 1628, the various constitutions of the Com- 
monwealth period, and the Bill of Rights and Act of Settlement 
of 1689 and I 701, were more than a defence of personal lib- 
erty : they clearly defined the supreme power of Parliament, 
extending even to the transfer of the sovereignty from James II 
to William and Mary : the right of the king to interfere with 
members of Parliament for words spoken or action taken in 
their respective houses was successfully resisted ; the king was 
compelled to give up any claim to dispense with acts of Par- 
Hament. When the House of Hanover began to reign, in 
1 7 14, it found the real authority of the nation expressed by 
a parliament in which the House of Lords was controlled by a 
small number of noble Whig famiUes, and the House of Com- 
mons was made up of elected representatives, a majority of 
whom owed their seats to the same influence of the nobles ; 
but the principle of representative government was still main- 
tained. With many inequalities of representation. Parliament 
reflected the public sentiment of thinking men : what England 
sincerely wanted. Parliament would do. 

In the course of their struggle of five centuries, the English 
people gained the following distinct principles of free govern- 
ment : (i) the right of the people to be represented in Par- 
liament; (2) the right of Parliament to pass acts which 
after 1707 the king must sign; (3) the right of Parliament 



§ 22] English Precedents. 41 

to lay or to withhold the only taxes which might be collected 
of subjects ; (4) the right to supervise the royal accounts 
and to impeach royal ministers who acted contrary to the law ; 
(5) the right of members of Parliament to express their minds 
in Parliament without responsibility elsewhere. 

English local government during the two centuries of colo- 
nization in America was of three kinds : ( i ) the cities, in 
which the right to participate in the government was always 
limited, and in some cases enjoyed by very few persons ; 
(2) the counties, in which there was no popular govern- 
ment at all, the authority being the court of Quarter Sessions, 
a body of county gentlemen who acted as local judges and also 
as administrators; (3) the parishes, in none of which was 
there a representative government, and in few of which was 
there a general meeting of voters ; many were governed by a 
small board made up of a few people of consequence in the 
parish and filling its own vacancies. Yet the desires of those 
in the community who had an interest in public affairs were 
iiirly met by their system of local government. 

22. Colonial Precedents of Free Government. 

For the American colonist, the foundations of his system of 
government were the institutions of his native country. No 
aignificant influence came upon America from any other coun- 
try than England : the French, Swedish, and Dutch settlements, 
which were eventually incorporated into the colonies, were too 
small and had too little self-government to affect the course of 
development. Yet in a century and chree quarters of coloni- 
zation, many changes came about in the new governments, for 
the colonists were placed in a position where they had to act 
for themselves or be swept out of existence. The conditions 
of hfe in a new country made some parts of the English system 
inapplicable : for instance, since there were no large cities, there 
was little city government. The colonial communities were 
also large enough to assume some functions of government 
which in England could only be exercised by Parliament. 



42 Fundamental Ideals. [§ 22 

It was not in the minds of the first settlers to found govern- 
ments at all : they were organized as commercial companies, 
having seats in England, with charters like those of other 
commercial companies of the time ; the stockholders of the 
company held annual meetings — the so-called General Courts 
— at the seat of the company in England. The London 
Company, which founded the colony of Virginia in 1607, was 
very like the East India Company, chartered in 1600; and 
until 1 6 19 it did not recognize any right of self-government 
among the colonists. Even the colony of Plymouth was 
founded as a commercial fishing venture, the colonists for some 
years acting as a company, with all the property in common. 

Colonial conditions speedily compelled a different form of 
government. In 16 19, as a later royal governor said, "Repre- 
sentative government broke out in Virginia," by the calling of 
a delegate assembly from the planters. In 1630 the Massa- 
chusetts colony deliberately transferred its charter to America 
and held company meetings there, to the surprise and wrath 
of the royal government. The people of Plymouth and of 
Massachusetts settled separate villages, each of which speedily 
began to take action in its own local affairs upon the model of 
parish meetings in England. The scattered planters of Vir- 
ginia and Maryland organized county courts of Quarter Ses- 
sions, such as they had known in England. Thus, within a 
few years from the planting of the first colonies, they began to 
set up colonial and local governments not distinctly authorized 
by England. 

The home authorities, however, accepted the situation by 
permitting the people of Plymouth for seventy years to carry 
on a government without a charter ; they recognized the acts 
of the Massachusetts government; and in 1632 they admitted 
the right of representation by granting the charter of Mary- 
land, in which the proprietor was expressly authorized "to 
retain, make and enact laws of what kind soever, ... for 
and with the advice, assent and approbation of the free-men 
of the whole province." 



§ 2 2] Colonial Precedents. 43 

The type of colonial government was the same in the three 
so-called "charter" colonies; in the three proprietary colo- 
nies ; and in the seven provinces having no written constitu- 
tion, but by the instructions to their governors recognized as 
self-governing. It included three main factors : — 

( 1 ) The royal governors, corresponding to the sovereign 
in England, with large personal dignity and considerable 
powers of appointment and general administration, acting 
under directions from England, and armed with an effective 
veto on the action of the legislature ; Rhode Island and Con- 
necticut had elective governors. 

(2) The legislatures, in general composed of two houses. 
The upper council, appointed by the crown (except in the 
charter colonies) , was at the same time an administrative body, 
a high court (in several colonies, the highest court), and also 
a part of the legislature, in all three respects corresponding to 
the English House of Lords. The lower house, or assembly 
(in Massachusetts called the General Court), was composed 
of elected representatives. The legislatures passed laws, sub- 
ject to the veto of the governor; but even if he approved, 
the laws might still be disallowed by the home government. 
Colonial legislatures had abundance of interesting business : 
they made the criminal laws, and provided for property and 
other legal relations. 

(3) The courts, composed of judges appointed by the 
crown or governors, but paid by the colonial assemblies. 
From the decisions of the higher colonial courts there was 
appeal to the Privy Council in England, acting as a judicial 
body. 

In form the governors, the legislatures, and the courts were 
all subject to the English government. That control was very 
imperfect ; first, because under the English theory the colonies 
were governed by the crown and not by Parliament (until just 
before the Revolution, Parliament never passed any statute 
specifically altering a colonial government) ; in the second 
place, the colonies were far away, and England was much 



44 Fundamental Ideals. [§ 22 

occupied in the eighty years before the Revolution with Euro- 
pean and naval wars ; hence the Americans were allowed to 
care for themselves in most important matters, — they laid 
their own taxes, they made their own Indian wars, they legis- 
lated on many questions of personal right. 

The suffrage in the colonies was much restricted. In 
Massachusetts and New Haven, in the earlier years, nobody 
could vote but a church member, that is, a Congregationalist ; 
later, in all the colonies there was a property qualification, 
usually the ownership of land, sometimes the additional pay- 
ment of taxes. The forty shilling freehold, or ownership of 
land worth two pounds a year rental, was the usual condition 
of county suffrage in England ; a similar condition applied to 
the colonies where land was cheap, was easy to satisfy ; and 
hence, without a change of principle, the suffrage was much 
enlarged. Still, the number of voters in proportion to the 
population, up to the Revolution, was not more than a third 
or a fourth as many as at present ; the majority of the adult 
men were not voters. 

In local government, again, the colonies applied familiar in- 
stitutioiiS but expanded in unexpected directions. The parish 
meeting in England was a small affair ; in the New England 
colonies, where large communities settled within sound of the 
same church bell, the town-meeting became an intelligent and 
active little popular assembly. Down to the Revolution, and 
even to the present day, the town-meetings of rural towns were 
effective forums for the discussion of public questions ; and the 
participants had a good political education, dealing with such 
ordinances as the following : — 

" It is voated and ordered that from and after ye first day 
of aprill next Noo Geese shall be Lett goe vpon the Common 
or in the highways nor in the water with in this Township of 
Prouidence or with in the Jurisdiction thereof nor vpon any 
other persons Land Excet those that one the Geese : on the 
pennilty of the forfiture of all such Geese that are so found." 

" Mr. Jonathan Spreague Junr Js Chosen deputy to serue 



§ 23] Earliest State Constitutions. 45 

att the next Genr. Court of Accembly to be held att Newport 
Jn this Jnstant June Jn the Roome of mr. Andrew Harris." 

In the Southern colonies, where there were no villages, but 
the people settled on plantations most of which had a tide- 
water front, such popular gatherings were impossible. The 
local government was a select vestry of the parish, — a self- 
perpetuating body after the English model, — and for the 
counties the court of Quarter Sessions, a body of appointed 
local legislators, also on the model of the English shire. 

In all colonial history, the only city charters of much impor- 
tance are the Dongan charter of 1684 for New York, and 
Penn's charter of 1691 for Philadelphia, 

The criminal law was as frankly cruel in the colonies as 
elsewhere ; but the poorest individual had a good opportunity 
of bringing his grievances to the attention of the men of 
power ; and, upon the whole, life was freer and opportunities 
were better than anywhere else in the world. 

23. The Earliest State Constitutions. 

The experience of the colonial government made the Revo- 
lution possible, for it gave opportunity for the American people 
to organize new governments which could better provide for 
the needs of the people. 

In 1775 the old colonial governments suddenly collapsed, 
because the people drove the royal governors out : thus, the 
provincial courts of New Jersey declared that their governor, 
William FrankUn, ought not to be obeyed, and that all pay- 
ments of money should cease. In a few of the colonies, as 
Massachusetts, the old assembly kept up its functions ; in 
others, irregular revolutionary conventions or congresses took 
over the direction for the time being. Until November, 1775, 
all the colonies professed still to own allegiance to the crown ; 
but, on November 3 and 4, Congress passed a vote advising 
the people of New Hampshire and South Carolina to establish 
governments for themselves, and promised military force in 
their defence. Thereupon began the era of written state con- 



46 Fundamental Ideals. [§ 23 

stitutions. The word " state " had sometimes been appUed to 
the colonies, and was adopted by all the new political units 
except the "commonwealths" of Massachusetts, Pennsylvania, 
and Virginia. 

For the organization of state governments the precedents 
were those of the existing English and colonial governments ; 
but they took care to formulate their principles of government 
in written documents, very brief at first, but afterwards ex- 
tended into the type of the present state constitution. First 
in time was the vote of the New Hampshire Convention : " In 
Congress at Exeter, January 5, 1776, voted, that this colony 
take up civil government in this colony in the manner and 
form following." Ten other states, from 1776 to 1780, framed 
regular constitutional documents. The charters of Connecti- 
cut and Rhode Island were already so liberal that with very 
slight changes they answered for many years as state consti- 
tutions. 

The original state constitutions usually contained two parts : 
( I ) A statement of the rights of individuals, which practically 
repeated, and often used the phrases of, the English docu- 
ments of personal liberty from Magna Charta down, and of 
the American Declarations of Rights of 1765 and 1774. The 
bills of rights in general recorded the doctrine of the social 
compact, — namely, that government rests upon the actual or 
tacit consent of the governed ; they asserted the great rights 
of free speech, of speedy and fair trial, of taxation only 
through representation ; one clause in North Carolina even 
went to the prohibition of perpetuities and monopolies. It 
was not the conception of the framers of these constitutions 
that the rights formulated were the only rights of men or 
were created by their enactments : they held them to be in- 
alienable, founded in human nature and the experience of 
mankind, and inserted in the constitutions only for their better 
safeguard. 

(2) The second part of the early constitutions was a frame- 
work of government, usually expressed in very brief phrases. 



§ 23] Earliest State Constitutions. 47 

With one exception, they provided a single governor, but shorn 
of many of the powers enjoyed by the colonial governor ; 
and judges, in some cases appointed by the governor, in some 
cases elected by the legislature. This balanced government 
of three departments was founded on colonial practice, still 
prevails in every state, and was adopted in the later federal 
system. The suffrage was continued much as before the Rev- 
olution, with a property qualification and a consequent small 
electorate. Three of the new constitutions, Vermont, Penn- 
sylvania, and Georgia, made the experiment of a single house, 
which was soon abandoned. In general, few restrictions were 
put upon the legislative authority, and it was everywhere ac- 
cepted as a principle that the legislatures could exercise any 
powers not expressly forbidden in the text of the constitution, 
or contrary to traditional right. 

Of the eleven new constitutions, ten were put into force 
by the congress or convention which drew them, and which 
represented the sovereign authority of the people ; but those 
conventions were also the legislatures of the time. Massachu- 
setts worked out a different system : in 1778 the constitution 
framed by the legislature was submitted to popular vote and 
failed; in 1780 Massachusetts called a convention expressly to 
frame a constitution, which took effect only after a popular 
majority ; and most constitutions since that time have been 
framed in the same manner. One defect of the early consti- 
tutions was that few or none made distinct provision for later 
amendment ; nevertheless each of the first series, except that 
of Massachusetts, was replaced within about twenty years by 
a new, complete constitution. 

This era of constitution-making deserves analysis. Its sig- 
nificance was: (i) the consciousness that the constitutions 
must have a written basis and clearly restrict the governing 
authorities; (2) the conception that the making of a consti- 
tution was a slow affair which required special attention, and 
eventually that a constitution ought to be framed by a special 
convention and then ratified by popular vote; (3) though the 



48 Fundamental Ideals. [§ 24 

suffrage was limited, the form of government was very demo- 
cratic, for the largest governing power was the elective legis- 
latures, balanced and checked by an executive and by the 
courts; (4) the constitutions included elaborate statements of 
the rights of the individual, rights preceding and independent 
of government; (5) the written constitution was considered 
to be a law of a superior and more permanent character than 
any ordinary statute. 

24. Genesis of the Federal Constitution. 

Federal government was nothing new in history in 1776: 
the Greeks had many federations ; the Latin tribes had a fed- 
eration ; the mediaeval, Italian, and German cities developed 
federations; and in 1787 there were in existence three living, 
though decaying, forms of federal government, — the Holy 
Roman Empire, the Swiss union, and the United Netherlands. 
From 1643 to 1684 America had the experience of the United 
Colonies of New England, formed so "that as in Nation and 
Rehgion, so in other respects we bee and continue one " ; but 
that federation had for a century been almost forgotten, and 
had no influence on our present federal union. 

The real forerunners of the constitution of 1787 were the 
various forms of colonial union from 1690 down: congresses 
of governors or other representatives of the colonies were held 
from time to time, usually to discuss joint Indian treaties ; 
many statesmen, including King William III and William Penn, 
suggested permanent forms of colonial union ; in 1754 a con- 
gress at Albany recommended a plan of union, drawn up by 
Benjamin Franklin, in which the votes would have been pro- 
portioned to the population of the colonies; in 1765, the 
Stamp Act Congress, with delegates from nine colonies, acted 
as the mouthpiece of discontent against taxation, and adopted 
a ringing statement of the rights of colonists. 

All these meetings were occasional or undefined ; but in 
September, 1774, delegates of twelve colonies met at Philadel- 
phia, and speedily took the name of " Continental Congress." 



§ 24] Genesis of Federal Constitution. 49 

They met simply to protest, and adjourned after preparing 
spirited appeals to the king and the British people, and draw- 
ing up the so-called " Association," or agreement not to import 
British goods. 

The Second Continental Congress met May 10, 1775, after 
war had actually broken out at Lexington and Concord. Like 
its predecessor, it was made up of members springing from 
irregular congresses and conventions, representing the revolu- 
tionists in the various colonies ; and not a single member had 
instructions which justified him in aiding to organize a govern- 
ment. Nevertheless, in the face of the difficulties before it, 
the Congress accepted the responsibility of organizing a military, 
naval, financial, and diplomatic service. The powers. of the 
Continental Congress were, however, never defined except by 
practice. It raised armies and navies, borrowed money, com- 
missioned ambassadors, made treaties, issued paper notes, and 
took charge of territory and Indians, simply because there 
was nobody else to perform those services for all the colonies. 

From the first it was expected that a written federal consti- 
tution would be drawn up. The Declaration of Independence, 
July 4, 1776, made the necessity for a closer form of union 
greater ; and Congress from time to time discussed articles of 
confederation, and finally submitted them in November, 1777. 
The states were slow in ratifying, principally because the 
Articles of Confederation did not give Congress control over 
Western territory; but on March i, 1781, the last ratification 
by a state legislature was communicated to Congress, and the 
Articles of Confederation went into force, superseding the 
vague and changeful authority of the Continental Congress. 

The government under the Confederation was brief and un- 
satisfactory. Congress ceased to sit in October, 1788, less 
than eight years after the Articles went into effect. Congress 
did not have powers to lay taxes directly, or to regulate com- 
merce between the states or with foreign nations ; and the 
feeble executive and judicial officers were all appointed by and 
responsible to Congress. Nevertheless, the Confederation was 

4 



50 Fundamental Ideals. [§ 24 

on the whole a successful experiment in government : it had 
powers never before distinctly granted by a federal constitu- 
tion ; it could assess sums of money upon the states ; over the 
Western lands it assumed necessary powers not granted, and it 
passed three ordinances for their sale and government ; it suc- 
cessfully negotiated with Great Britain the treaty of peace of 
1783, and several commercial treaties. Above all, the Con- 
federation was a profound lesson to the people of the United 
States of the necessity of yielding greater powers to a general 
government, if the country was to take its place among nations ; 
and it was a nursery for later statesmen, — Hamilton, Jeffer- 
son, Madison, and Monroe were all members of Congress at 
one time or another, and learned to understand its workings. 
After the pressure of war was taken off in 1 783, the workings 
of the Confederation government showed that a stronger 
national authority was necessary. 

That stronger authority was furnished by the Fe^ieral Con- 
vention of 1787, which was suggested as far back as 1780, 
strongly advocated by Washington in public and private let- 
ters, formally urged by the legislature of Massachusetts in 1785, 
and definitely proposed by a preliminary convention at Annapo- 
lis in 1786. The Convention was organized on a plan which 
still remains the best for such a work : it was composed of 
delegates appointed solely for the purpose of framing a new 
constitution, and it included a body of practical men, most of 
whom had seen service in both colonial and state governments. 
By the use of their experience, and by the constructive genius 
of men like Washington and Madison and Hamilton and Roger 
Sherman and Charles C. Pinckney and James Wilson, the con- 
stitution was so made as to answer to the needs and purpose 
of the United States then and for the century since. 

Mr. Gladstone has called the federal constitution " the 
most wonderful work ever struck off at a given time by the 
brain and purpose of man." Mr. Gladstone was mistaken : 
the federal constitution is not a creation, but simply the re- 
corded and well-arranged statement of what experience showed 



1 



§ 25] Unity. 5 1 

to be the safest method of governing the American states. 
The fathers of the constitution applied the experience of Eng- 
lish government from the Conquest to the time of the Revolu- 
tion, the experience of the colonies, the fresh experience of 
the new states, the experience of the Confederation. The 
president was a larger state governor, his veto was taken 
almost verbatim from the Massachusetts constitution ; the 
Supreme Court was on a larger scale the colonial and state 
courts and the English Privy Council acting on appeals ; the 
Senate was the old colonial council expanded ; the House of 
Representatives was the colonial and state assembly over 
again ; the constitution was simply the crystallization of cen- 
turies of actual practical experience of free and representative 
government, adapted to the needs of a federal republic of 
immense area and possibilities. 

^5. Unity of American Government. 

Since the federal constitution applies to the whole United 
States, and since the general government is powerful and im- 
presses the imagination, Americans have come to look upon 
the federal constitution j,s the one national constitution, and 
upon the states and their constitutions as subordinate. Such 
was not the conception of the fathers of American government, 
nor is it the actual system under which we now live. There 
is no national union without states, and equally there are no 
states without union ; there is no town, city, or county, except 
as a part of a state or a territory. The correct view of Ameri- 
can government is that every form of government, national, 
state, or local, emanates from the same authority, — namely, 
from the people of the United States. The fundamental basis 
of American government is the right of a people to organize 
and form governments for themselves. Organization of state 
governments preceded the formal organization of a national 
government ; and hence the federal constitution throughout 
presupposes the existence of states, but of permanent states 
which shall thereafter remain in the Union. The original state 



5 2 Fuadamental Ideals. [§25 

governments were framed with the expectation that there would 
also be a national system, and with the intention to continue a 
system of local governmental units. From the beginning, the 
Americans had been accustomed to the control of England 
over their governors, their legislatures, and their courts ; and 
hence they saw no loss of liberty in the submission of state 
governors, state legislatures, and state courts to a central 
authority springing from the whole nation ; and they expected 
to control their own towns, counties, and cities. 

In ratifying the federal constitution, every state thereby con- 
sented to a modification of its own constitution : when, for in- 
stance, they agreed that the United States have the sole power to 
make treaties, they formally abjured authority to make treaties ; 
when they adopted the federal power to lay taxes, they tacitly 
agreed that state taxes should not interfere. The principle of 
American government is, each for all and all for each. In this 
sense, the people of Massachusetts in 1787 helped to modify the 
state constitution of North Carolina, and the people of Georgia 
helped to lay restrictions on the commonwealth of New York. 

Whatever the historical theory as to the origin of the Union, 
in practice there is only one source of authority, one form 
of government, and one group of fundamental powers. The 
source is the American people as a whole, who alone have the 
power, through a complicated machinery, to alter the federal 
constitution and thereby may alter their state constitutions, their 
city charters, and their local governments ; the state govern- 
ments and the local governments are not separate from each 
other or antagonistic to each other, — they are each other, in 
that they are bound by the same system of law and tradition. 

The one form of government is the whole body of govern- 
ing officials, organized into three great groups, — a national 
service with its administrative center at Washington, state staffs 
centered at the various state capitals, and local meetings or 
bodies, each acting in and for its own place. The president 
of the United States is no more independent in his authority 
than the governor of a state or the mayor of a city : they are 



§26] Separation of Powers. ^3 

all parts of one system, all subject to the restrictions of the 
federal constitution, all acting under a body of tradition in 
which each must respect the prerogatives of the other. 

The one group of fundamental powers is all the powers 
inherent in any government, less a few restrictions expressed 
in the federal constitution. In practice, however, the nation, 
states, and local governments are to a large degree set off from 
each other through their functions. 

26. Separation of Po^wers. 

In a centralized country like France, the unity of govern- 
mental power is more clearly seen because there are no states, 
and the localities are directly subject to the central authority. 
In the United States the exercise of power is decentralized 
ihrough two great restrictive principles which seem to be 
inbred in American life — separation of powers and division 
of powers. 

The first of these restrictions is the separation of powers, or, 
as it is often called, " checks and balances." In England, 
after the Norman Conquest, royal power was military, and 
the king was at the same time the source of law, of adminis- 
tration, and of justice. Gradually Parliament grew up to 
power, till, after the last royal veto was written in 1 707, it 
became the sole legislative authority. By the Act of Settle- 
ment of I 701, the judges got a tenure during good behavior, 
and the courts became free from royal interference. Hence 
the great French publicist, Montesquieu, in his famous book 
D Esprit des Lois, published in 1748, thought that he had 
discovered in England a system by which the legislature made 
law : the king could not make it, but could execute it ; and 
the courts could neither make nor execute laws, but could 
apply them to specific judicial cases ; thus each of the three 
departments of government was a check upon the other. As 
a matter of fact, there has never been such a subdivision in 
England : when Montesquieu wrote, the king had become 
inert, the judges could not hold the acts of "Parliament void, 



54 Fundamental Ideals. [§ 27 

and Parliament was already the great motive force, as it still 
remains. 

The American colonies practically had this subdivision of 
powers : the governor could check the assembly, and the 
assembly could check the governor ; and the courts to some 
degree could check them both. Our forefathers liked that 
system, and they incorporated it into their state constitutions ; 
but the Confederation was organized virtually on the parlia- 
mentary plan, — its executive officers were appointed by Con- 
gress, were responsible to Congress, removable by Congress, 
and Congress also set up and pulled down courts. This is 
practically the sole experience within the United States of a 
system of parliamentary responsibility, and it was completely 
disrupted by the federal constitution. In 1787, separation 
of powers was formally introduced into the federal system : a 
Congress with large law-making powers was created ; a presi- 
dent was provided, neither elected by Congress nor responsible 
to it ; a system of courts was set up to apply the federal law, 
and very soon to lay down the mighty principle of its right to 
hold statutes invalid. 

27. Division of Powers. 

The second great American principle of government is the 
division of powers between the nation and the commonwealths, 
and within a commonwealth between the state and local au- 
thorities. The fundamental principle of our federal govern- 
ment is that the inherent sovereign powers in the community are 
normally exercised through the state governments, and there- 
fore that any residuum of power is left to the states and not 
to the Union. Under our system of iixed and rigid constitu- 
tions, the division of powers is expressed, first, in the federal 
constitution, and then in the state constitutions ; and disputed 
questions must usually be decided by the courts. Therefore, 
if we wish to know what in practice are the limits between 
national and state powers, and also between powers exercised 
directly by the states and indirectly by the local governments 



§27] Division of Powers. ^^ 

springing from the states, we must search the recorded judicial 
decisions. 

To the national government, and hence to the national offi- 
cials, are committed the immense powers of war and peace, 
finances for national purposes, foreign relations, control over 
all territory not actually organized as states and over all com- 
merce which does not begin and end within the boundaries 
of a single commonwealth. 

The larger body of legislation is left to the states, which 
regulate most of the relations of individual to individual, 
which create and regulate corporations, which have control 
of property rights, land tenure, inheritances, education, and 
religion, supervise by far the greater volume of all business 
and commerce, administer almost the whole of criminal law, 
and care for the weak and dependent. In most respects the 
states come nearer to the individual than does the federal 
government. 

Local governments are less separated from the state govern- 
ments than the states from the national government, because 
their form is entirely dependent upon easily alterable state 
legislation • but the habits of the people are such that all the 
states practically concede to the localities and to the cities the 
immediate personal care of the population. In their hands 
are the streets, water, lighting, education to a large degree, 
many dependent classes, local transportation, and the main- 
tenance of public order. 

To sum up, questions of health, cleanliness, and morality, the 
questions which most closely and most frequently touch the 
individual, are given to the local governments ; business and 
criminal relations to the states ; national defence and foreign 
relations to the nation. The national control of foreign and 
interstate commerce makes the division of commercial powers 
indefinite and disputed. 



56 



Fundamental Ideals. [§ 2S 



28. The Written Constitution. 



One of the strongest parts of American government is the 
respect for written constitutions. The constitution of a coun- 
try is really its method of working : the so-called " principles 
of the British constitution " are nothing more than the gen- 
erally accepted ideas as to what the government of Great 
Britain ought to undertake, particularly as determined by the 
historical knowledge of what it has undertaken. 

We Americans use the term in a somewhat different sense. 
By "constitution" we mean a specific written instrument 
defining the government ; and an executive or legislative act 
is unconstitutional if contrary to the terms of that instrument. 
The five elements of the fundamental conception of our con- 
stitution are, that it is definite, comprehensive, supreme over 
all other forms of written law, fundamental, and alterable only 
by a special process. 

(i) The first of these principles is very ancient : the Ten 
Commandments, the twelve tables of Roman law, the capitu- 
laries of Charlemagne, were put in writing or graven on tables 
in order that men might know the law and thus obey it, and 
that the law might be preserved as it was uttered. 

(2) A good constitution must cover the whole field of gov- 
ernment, at least in general terms. Laws which relate to prin- 
ciples of great importance often get to be regarded as almost 
irrepealable : thus the organization of the Roman assembhes 
was crystallized by a succession of venerable statutes ; in the 
Middle Ages arose the system of granting imperial and royal 
charters to individuals and to cities, universities, abbeys, and 
other corporations, in which charters often a detailed form of 
government was laid down. These documents probably sug- 
gested the similar charters of the early American colonies ; 
but they were all partial, incomplete, and depended on a 
higher authority than their own. 

(3) During the English Commonwealth the idea was thrown 
out, perhaps because of the influence of American governments, 



§ 28] Written Constitution. z^'j 

that there ought to be a fundamental written instrument, 
superior to any act of Parliament. In 1647 the army began 
to draw up written schemes of government, of which the most 
important was the so-called " Agreement of the People," issued 
in 1649. It declared itself to be intended "for a secure and 
present peace, upon grounds of common right, freedom, and 
safety " ; it reformed the representation, by apportioning it ac- 
cording to population ; it fixed the electorate, established a 
council of state, and contained liberal provisions with regard 
to religion ; it gave to the representative body " supreme trust 
in order to the preservation and government of the whole " ; 
. . . except that six Particulars " are, and shall be, understood 
to be excepted and reserved from our Representatives." 

This constitution was never put into force ; but in Decem- 
ber, 1653, a so-called " Instrument of Government " was drawn 
up, because, as Cromwell said, " In every government there 
must be somewhat fundamental, somewhat like a Magna Charta, 
which shall be standing, unalterable." This is the only writ- 
ten constitution which has ever prevailed in England, and it 
came to an end with the death of the Protector, in 1658. 

The idea of a superior written law was clearly revived in the 
Habeas Corpus Act of 1679, the Bill of Rights of 1689, and 
the Act of Settlement of i 701, though in theory those acts were 
all revocable. The best examples of written constitutions in 
this period are the royal charters of the three New England 
colonies, and the famous Fundamental Orders, drawn up by 
the people of Connecticut in 1638, which is the first well- 
articulated constitution ever made by representatives of a 
popular community for their own government. When the 
Revolution broke out, the states made documentary consti- 
tutions for themselves. 

The Articles of Confederation were intended to be a national 
constitution, and have three of the characteristics already 
mentioned : they were fixed in writing, superior to statutory 
law, and required a special process for amendments. 

To carry out the third criterion of a written constitution, — ■ 



58 Fundamental Ideals. [§ 28 

that it shall be superior to other laws, — is a hard thing in a 
federation where there are several forms of law. A prime 
difficulty of the Confederation was the lack of a method by 
which the supremacy of the federal constitution could be 
asserted over state constitutions. The constitution of 1787 
distinctly reformed that difficulty by a clause providing that 
"This Constitution and the Laws of the United States which 
shall be made in Pursuance thereof; and all Treaties made, or 
which shall be made, under the Authority of the United States, 
shall be the Supreme Law of the land ; and the Judges in every 
State shall be bound thereby, any Thing in the Constitution or 
Laws of any State to the Contrary notwithstanding." 

Under the federal constitution has been created a hierarchy 
of laws. First and supreme is the constitution of the United 
States ; second, come federal treaties and laws, consonant with 
the constitution ; third in efficacy are the state constitutions, 
which must conform to the federal constitution and also to 
consonant laws and treaties ; fourth, comes state legislation, 
which must not be in contravention with either one of the 
three higher forms of law ; fifth, come the ordinances of local 
and municipal governments, which must not go beyond any 
of the four higher forms of law ; sixth, come the by-laws of 
corporations of every kind, such as universities, commercial 
companies, benevolent societies, all of which must not go con- 
trary to any of the five higher forms already mentioned. 

(4) A good constitution must be brief, or else it becomes 
a code of laws. The original federal constitution has 4,000 
words, and may easily be committed to memory by any quick 
student ; the state constitutions vary in length, the first New 
Hampshire constitution of 1776 having 900 words, and the 
Louisiana constitution of 1898 having 40,000 words. In gen- 
eral, the longer and more detailed the text of the constitution, 
the more opportunity for dispute about its meaning. The 
increase in length is due to the habit of looking upon a consti- 
tution as superior to a law : conventions insert in a new consti- 
tution anything that it is desired to put beyond the power of 



§ 29] Constitutional Amendments. 59 

legislation ; hence the constant tendency is to increase the 
prohibitions and limitations in the written constitution, and 
thus to tie the hands of public officials for the time being. 

29. Preparation of Constitutional Amendments. 

The fifth criterion of a written constitution is that it be sub- 
ject to a special form of amendment. Though in some Euro- 
pean countries constitutions are enacted like ordinary laws, a 
special method is essential if the distinction between ordinary 
statutes and a supreme constitution is to be observed. Effi- 
cient methods of constitutional amendment must call for 
special consideration, must attract public attention and invoke 
public opinion ; for a poor constitution once adopted cannot 
easily be changed. 

The federal constitution provides two different methods for 
its own amendment. The first is the calling of a convention, 
similar to the Philadelphia Convention of 1787, on the appli- 
cations of the legislatures of two thirds of the states ; it has 
never been employed, although there was a movement for a 
convention in 1788, and in 1861 there was strong pressure 
for a convention to find a means of obviating the Civil War. 
The ordinary method for the submission of federal amendments 
is a concurrent vote of two thirds of both houses. Hence the 
initiative of amendment may be taken by states through their 
senators, or by any membei of either house who cares to sub- 
mit a joint resolution. 

In the first century of the federal government, more than 
1,900 amendatory resolutions were submitted, many of them 
including more than one clause. Out of all those 1,900, only 
nineteen have ever received the adhesion of two thirds of both 
houses, of these only fifteen have actually been added to the 
constitution, and these fifteen are the result of two periods of 
discussion, 1787 to 1802, and 1865 to 1869. 

In the states the submission of separate amendments is much 
more common, and complete revisions by conventions ap- 
pointed for that purpose are also frequent. Various methods 



6o Fundamental Ideals. [§ 29 

of amendment are prescribed by the state constitutions. In 
some states, no amendment can be considered which has not 
been recommended by two successive legislatures; another 
method is to require a special majority in each house, some- 
times as many as three fourths of the members ; in some states, 
amendments cannot be submitted oftener than once in a fixed 
number of years ; in a few cases commissions have been created 
to draft a constitution and report it to the legislatures. In 
Delaware, the legislature makes constitutional amendments, 
but only after a previous legislature has voted them and a new 
election has been held. The most common method is that 
amendments shall be approved by a special majority of both 
houses, and thereupon submitted to the people for their rati- 
fication. No complete constitution has been drawn up by a 
state legislature since 1778, with one exception, — Nebraska 
in 1866. 

A constitution loses coherence after it has been several times 
amended, and the growth of the community sometimes requires 
a new statement of principles. In some states conventions 
must be called at fixed intervals, usually about once in twenty 
years. Conventions have rarely any other functions than to 
prepare revised constitutions, and the members are chosen by 
special election. Men will attend a constitutional convention 
who would not give their time for service in the legislature; 
hence the personnel of the convention is usually higher, and it 
is more accustomed to defer to the expert authority of jurists 
and public men. A convention sometimes sits for months, and 
usually submits its work as a whole, sometimes setting apart 
for a special popular vote some clause upon which the whole 
constitution does not depend. For instance, the New York 
Convention of 1894 subjected to separate votes clauses on 
apportionment and canal improvement. 

From 1792 until near 1890, about a fifth of the new constitu- 
tions were put in force by the fiat of the convention. Neverthe- 
less the attempt in 1858 to admit Kansas as a slave state, under 



§ 3o] Constitutional Amendments. 6i 

a constitution which had not been completely submitted to 
popular vote, was thought to be a violation of the dearest rights 
of the American people. However, since 1890, conventions in 
Louisiana, South Carolina, and Virginia have assumed the right 
to declare a new constitution in force without a popular vote, 
for the simple reason that the voters under the old constitution, 
if they had been consulted, would have shown a considerable 
majority against the new constitution ; and such action is 
legal if the previous constitution does not require a popular 
vote on amendments. 

30. Ratification of Constitutional Amendments. 

Both separate amendments and complete constitutions usu- 
ally require popular ratification after they have been formu- 
lated by a legislature or by a convention. Every amendment 
to the federal constitution has received formal ratification by 
the state legislatures in three fourths of the states : but the con- 
currence of sixty-eight legislative houses in thirty-four states is 
a degree of agreement almost impossible except in the face of 
a manifest pubhc danger. Out of the series of twelve amend- 
ments submitted by Congress in 1789, only ten got the three- 
fourths majority ; the Eleventh Amendment — on the judiciary 
— passed both houses almost unanimously in 1794, but was 
nearly four years in process of ratification ; the Twelfth Amend- 
ment, submitted in December, 1803, — on the election of the 
president, — was ratified in nine months. In 1803, President 
Jefferson urged the adoption of a constitutional amendment 
covering the annexation of Louisiana ; but he could not even 
get it introduced. A curious amendment, prohibiting the 
granting of titles of nobility by states, passed both houses with 
very little difficulty in 18 10, and got twelve of the necessary 
thirteen state ratifications. In 1861 the so-called " Corvvin 
Amendment," intended to prevent secession by a compromise, 
was passed by two thirds of both houses and received the un- 
necessary signature of the president, but was ratified by only 
three states, and was speedily dropped. The three great Re- 



62 Fundamental Ideals. [§3° 

construction amendments, the Thirteenth, Fourteenth, and 
Fifteenth, were ratified from 1865 to 1870 only by great 
pressure upon the states which had been in rebelUon ; for not 
one of those amendments could have been adopted without the 
approval of a considerable number of Southern state legislatures. 
Since the Fifteenth Amendment, no proposition of amendment 
has received the approval of two thirds of both houses. 

In every state except Delaware, single amendments must 
come before the people. One state, Rhode Island, in which 
there was no provision for making amendments, was by this 
inelasticity in 1842 brought to the verge of civil war, and after- 
wards adopted the usual system of constitutional amendments. 
The foundation idea of popular ratification is undoubtedly the 
"compact theory," — that government is founded on agree- 
ment of the persons governed, the favoring opinion of the 
majority being accepted as that of the whole. 

Nevertheless, a very considerable number of state constitu- 
tions have been put in force without any submission to the 
popular vote. In the first Revolutionary series, Massachusetts 
was the only state to ask for popular sanction. Down to 1897, 
there had been 132 constitutions framed by conventions, of 
which 88 were submitted to popular vote and i was submitted 
to another convention : 43 were declared to be in force by the 
convention itself; of these, 20 were first constitutions, and 23 
amended constitutions. 

Popular votes on constitutions or single amendments are 
usually taken at the time of some regular election, and receive 
less attention than the names of the candidates for office. 
Amendments to the constitution thus submitted are likely to be 
adopted ; but sometimes people vote down the whole work of 
a laborious convention, as in 1854 in Massachusetts. A ma- 
jority of the votes cast is usually sufficient to make the neces- 
sary constitutional change. Once voted on, there is no further 
question of the legality of the amendment, even though the 
constitutional convention has gone farther than prescribed by 
the statute creating it : clauses duly submitted and favorably 



§ 30 Construction and Application. 63 

voted become a fundamental part of the constitution. Of 
course no popular ratification can give authority to a clause in 
a state constitution which is not in accordance with the federal 
constitution. 

31. Construction and Application of Constitutions. 

The text of the federal constitution is legally supreme over 
all other forms of law within the boundaries of the United 
States : it goes beyond custom ; it supersedes any principle of 
international law which collides with it ; it overrides previous 
and subsequent state constitutions and statutes ; it controls 
local and municipal ordinances, and the acts of all corpora- 
tions, public and private. Nevertheless, few subjects are 
habitually so much discussed by the courts as the meaning of 
the federal constitution, and in like, manner of state constitu- 
tions. A constitution, like a statute, is phrased in words drawn 
up by human and often fallible men ; and there may even be 
two clauses of a constitution which do not agree with each 
other. The meaning of the words of a constitution, and espe- 
cially of the federal constitution, becomes of great importance : 
for instance, at intervals from 1787 to 1895, the courts have 
without much success endeavoured to discover what our an- 
cestors meant by " direct taxes." 

Yet v/e must know what the constitution means in order to 
appreciate the meaning of statutes "pursuant " to the constitu- 
tion. Every person who is called upon to perform a public act 
must conform to the federal constitution, but in order to do 
so he must make up his mind what the constitution means : 
the president, when he issues an order, thereby assumes that 
he is acting within the constitution ; the members of Congress 
in passing on a statute must act within the restrictions of the 
federal constitution. The courts, and especially the federal 
courts, are oftenest called upon to apply the constitution, be- 
cause in private suits their attention is called to rivalries in 
meaning between that instrument and national or state statutes. 
Inasmuch as the courts deal continually with vested rights, they 



64 Fundamental Ideals. [§ 31 

must know the traditional use of language, and the meaning of 
phrases in a legal sense. To the Supreme Court of the United 
States in the last instance belongs the mighty ofhce of expound- 
ing the federal constitution, of showing the adjustment between 
its parts, and of pointing out in all varieties of law any lack of 
harmony with it. 

The general principles of the construction of constitutions 
and statutes are simple : words are used in their ordinary sense, 
if it can be ascertained ; where two clauses seem to conflict, 
the courts will usually so construe the words as to give effect 
and vitality to the whole ; the intention of the framers may be 
consulted. The courts, however, take extraordinary precau- 
tions : they construe constitutions and laws only when they 
are obliged to consider them in order to decide cases actually 
before them ; and they apply previous principles, and work 
out a theory of the constitution and laws, which may be carried 
forward from year to year. To the federal and state courts, 
therefore, belongs the general duty of expounding and apply- 
ing the various constitutions. In the course of a century a 
body of connected, and on the whole coherent, doctrine has 
been laid down in court decisions with regard to the meaning 
of the federal constitution. The state constitutions change 
more frequently, are much more loosely drawn, and each new 
one requires a new body of decisions to establish its meaning. 



% 



Part II. 

The Will of the People. 



CHAPTER IV. 

SUFFRAGE AND ELECTIONS. 

32. References. 

Bibliography : F. W, Dallinger, Nominations for Elective Office 
(1897), 221-224; Brookings and ^mgvidli, Briefs for Debate (1896), Nos. 
1-5; A. B. Hart, Manual (1908), §§ 103, 104, 142, 147, 155, 158, 204. 
E. McClain, Constitutional Law (1905), § 197; R. C. Ringwalt, Briefs on 
Public Questions (1906), Nos. 2-4, 7, 9. See also references to ch. iii. 

Ideals of Democracy : W. W. Willoughby, IVature of the State 
(1896), ch. xiv ; F. H. Giddings, Democracy and Empire (1900), chs. i- 
vi, XV, xvi ; C. Borgeaud, Rise of Modern Democracy (1894) ; C. W. Eliot, 
Am. Contributions to Civilizatio7t (1897), Nos. 1-6; A. L. Lowell, Essays 
on Government (1889), Nos. 2, 4; J. A. Smith, Spirit of Am. Government 
(1907), ch. XV ; B. Wendell, Liberty, Union and Democracy (1906), ch. iv; 

A. B. Hart, National Ideals {Am. Natiofi, XXVI, 1907), chs. v, vi, xix ; 
T. Jefferson, Writings (Washington ed.), I, i-iio; W. G. Brown, A71- 
drew fackson (1900); N. Hapgood, Abraham Lincoln (1899); extracts 
from Lincoln, in Am. Hist. Leaflets, No. 18; E. L. Godkin, Problems 
of Modern Democracy (1897), Nos. i, 2, 10; S. E. Baldwin, Modern 
Pol. Institutio7is (1898), ch. ii ; A. L. Lowell, Popular Government. 

The Suffrage: E. McClain, Constitutional Law (1905), §§ 198-200; 

B. A. Hinsdale, American Government (rev. ed., 1895), ch. liv; M. D. 
Naar, Law of Suffrage and Elections (1880) ; A. E. McKinley, Suffrage in 
the Colonies (1905); E. C. Stanton, Woman Suffrage (3 vols., 1881-1887); 
A. de Tocqueville, Democracy in America (1835-1840, Reeve's trans- 
lation), I, chs. iv. xiii ; A. B. Hart, Practical Essays (1893), No. 2; 
R. Foster, Commentaries (1895), §§ 50-59; G. H. Haynes, Educational 

5 ^65 



66 Suffrage and Elections. [§ 33 

Qualifications {Pol. Sci. Qiiar., XIII, 495-513, 1898) ; J. Bryce, Am. 
Commonwealth (ed. 1901), I, 419; II, 99, 608, ch. xcvi. ; C. F. Bishop, 
Electiofts in the American Colonies (1893), P^^t i, ch. ii ; J. C. Rose, 
N'egro Suffrage {Am. Pol. Sci. Rev., I, 17, 1906). 

Elections : J. Bryce, Am. Commonwealth (ed. 1901), II, chs. Ixvi, Ixvii ; 
J. R. Commons, Proportional Representation (1896); D. B. Eaton, Gov- 
ernment of Municipalities (1899), chs. ii, ix, App. ; F. J. Stimson, Methods 
of Bribery (1889); F. H. Giddings, Democracy and Empire (1900), chs. 
xii, XV ; D. S. Remsen, Primary Elections (1894). — Tables of votes, in 
Tribune Almanac ; World Almanac ; Appleton^s Annual Cyclopcedia ; E. 
Stanwood, History of the Presidency (1904); F. A. Cleveland, Growth of 
Democracy (1898), chs. x, xii; C. A. O'Neii, American Electoral System 
(1887). 

Popular Votes on Legislation : E. P. Oberholtzer, Referendum in 
America (1900), chs. vii-xvi ; J. Bryce, Am. Commonwealth (ed. 1901), 
I, ch. xxxix ; S. Deploige, Referendu?n ijt Switzerland {\Z()i, translated 
by C. P. Trevelyan, 1898) ; F. A. Cleveland, Growth of Democracy (1898), 
chs. vii-x. 

33. History of Anglo-Saxon Suffrage. 

Representative government necessarily depends on a body 
of persons having the right to be represented, that is, to vote 
for representatives. Nobody quite knows who chose represent- 
atives to the Anglo-Saxon folk-moot ; but, after the Norman 
system, first the counties, and then also the cities, had the 
right to send members to the Great Council. In the English 
cities, the constituents were the freemen of the city, that is, 
those who had a membership in the municipal corporation 
established by royal charter. In the English counties, the 
suffrage went to the landholders; and gradually was devel- 
oped the theory that the necessary qualification was the 
possession of a forty-shilling freehold, — that is, ownership of 
land that was worth two pounds a year, which in early times 
was a high property qualification ; later, ether forms of land- 
holding were allowed. 

The American colonists brought over with them the idea of 
a limited suffrage, and a suffrage different in conditions for 
local and colonial elections. In the first half century of colo- 
nization there was no property qualification, but in Massachu- 
setts and New Haven none but church members could vote : 



§ 34] Suffrage. 67 

then sprang up the idea that the people who had property 
should be responsible for the conduct of public affairs ; and 
gradually, beginning about 1681, the ownership of land, or 
of considerable personal property, was made a qualification 
everywhere in the colonies. An acceptance of the principles 
of the Christian religion was necessary, and Quakers were for 
a long time excluded. People lost the suffrage for bad charac- 
ter or behavior, — for instance, " those notoriously vitious or 
scandalous, as common Lyars, Drunkards, swearers or apos- 
tates from the fundamentals of religion." 

The federal constitution very wisely avoided the creation of 
a uniform national suffrage, by requiring that voters for presi- 
dential electors and representatives should be the same as 
those for the most numerous branch of the state legislatures ; 
hence every enlargement of state suffrage was a corresponding 
extension of national suffrage in that state. Religious qualifi- 
cations began to drop off soon after the Revolution ; and after 
18 1 5 property qualifications lost ground, partly because it 
began to be seen that a man who did not own property had 
an interest in the welfare of the country, and partly because 
throughout the Union it was common to create fictitious prop- 
erty rights, so as to give a poor man the suffrage. After 1830 
the coming-in of great numbers of emigrants put a premium 
on the extension of the suffrage, because it was believed that 
they would prefer states in which they could easily acquire a 
vote ; and hence eleven states in the Union still permit a man 
to vote before he is naturalized. 

34. Qualifications for Voting. 

The theory of representation does not require that every 
member of the community shall vote, and there are several 
classes of exclusions, (i) First comes real or supposed in- 
capacity : children are not independent until the age of ma- 
jority, of legal change to manhood and womanhood ; and no 
one votes till twenty-one years old. Criminals, the insane, 
persons in confinement, are necessarily cut off" from the polls. 



68 Suffrage and Elections. [§ 34 

Paupers in institutions, and in some states those who receive 
outdoor relief, are excluded from voting, on the ground that a 
pauper is nearly always a person inferior in mental or moral 
equipment. 

(2) The second group of disqualifications is temporary: 
the almost universal practice is to require a man to reside in 
a state one year before he can vote, and to reside in a vot- 
ing district for thirty or sixty days. In England a man may 
vote in every county and city and university in which he pos- 
sesses the qualifications there required ; one person has cast 
thirteen legal votes in the course of a day : in the United 
States it would be a criminal offence for a man to vote in two 
residences at the same time. Closely akin to the residence 
qualification is the requirement that foreigners shall have at 
least declared their intention to become citizens. 

(3) A third group of qualifications is material. Though 
the holding of real estate has long since disappeared as an 
absolute requisite of voting, a tax qualification still continues 
in many states of the Union, although it has disappeared in 
most of the Northern states. There is a small poll-tax require- 
ment in Pennsylvania, and in many of the Southern states. 
Most of the richest and most prosperous communities in the 
United States have abandoned all forms of property or tax 
qualifications. 

(4) A fourth group of restrictions is moral and intellectual. 
In some states those who have been convicted of crime are 
nominally excluded ; but in practice it is so easy for a man to 
go to another community that the restriction is of very little 
account. Those who giv^e or receive bribes are in about two 
thirds of the states disqualified for a brief time, or permanently ; 
but the restriction is seldom applied. Religious disqualifica- 
tions appear in a few state constitutions, which provide that no 
person shall vote who does not believe in a God and a future 
life. No states any longer fix a criminal penalty on agnosti- 
cism or atheism ; under the laws of the United States, however, 
habitual polygamy, even though claimed to be a part of reli- 



§ 34] Qualifications for Voting. 69 

gion, excludes from the suffrage in territories, and this is also 
the case in Utah and Idaho. Connecticut, Massachusetts, 
Maine, Wyoming, Washington, and Delaware have each a 
genuine educational clause, by which, in order to vote, a man 
must be able to read at least a section of the constitution, 
and to write — usually his own name : thousands of people 
will not put their capacities to the test. In Mississippi, 
Alabama, South Carolina, and Virginia, since 1890, a so- 
called educational qualification has been inserted into new 
constitutions, the usual form being that an elector shall 
be able to '■' read or understand " the clauses of the state 
constitution. The real purpose of these provisions is to dis- 
franchise the negro, since the white election officer is with 
great difficulty persuaded that any negro '• understands " the 
constitution. In four states there exists the " grandfather " 
clause, — namely, that the educational limitation shall not 
apply to descendants of a person who was a voter before 
1867 or a soldier in the Civil War. This is expressly in- 
tended to relieve illiterate white persons, and is of doubtful 
constitutionality. 

Negroes having the pro_pertyor tax qualification were allowed 
to vote in some of the Northern colonies, and in North Carolina 
until 1835. Several of the Northern states, as Connecticut, 
New Jersey, Pennsylvania, and the Northwestern states, pro- 
hibited negro suffrage; as late as 1867 Ohio voted against it 
by a majority of 50,000. Soon after the Civil War, the suf- 
frage was conferred upon the negro in most of the new state 
governments by reorganized legislatures in 1 86 7-69; but it 
was plain that if the dominant element of the white race re- 
covered control, the negroes would be disfranchised. Hence, 
by the Fourteenth Amendment in 1868, the representation 
of any state was to be diminished if it disfranchised a class 
of voters. The Fifteenth Amendment, ratified in 1870, went 
much farther, by providing that no citizen should be deprived 
of the suff'rage " on account of race, color, or previous condi- 
tion of servitude." By the decisions of the Supreme Court, this 



JO Suffrage and Elections. [§ 35 

clause does not apply to Asiatics ; and the states may, and 
three of them do, prohibit the voting of members of the Mon- 
golian race. 

Notwithstanding this provision, since 1874 the negro has 
been deprived of the suffrage in most of the Southern states, 
either by terrorizing him so that he does not oifer to vote ; or 
by devising a system of balloting tending to throw him out on a 
technicality ; or by unabashed miscount of votes ; or by a com- 
plicated system requiring tax receipts. The recent Southern 
constitutions, therefore, are simply a legalization of previous in- 
direct and often illegal methods for preventing the reception of 
the negro's vote. 

35. Woman Suffrage. 

The non-admission of women to the suffrage was the uni- 
versal practice in every country having the representative 
system until about thirty years ago, when some of the Ameri- 
can territories began a new system. There are now four 
states, Colorado, Wyoming, Idaho, and Utah, in which women 
have suffrage ; one,, Washington, in which they formerly had it, 
but have now lost it. In several of the other states, woman- 
suffrage amendments have been submitted, but have failed of 
popular approval ; Kansas alone allows complete municipal 
suffrage ; Iowa and Montana allow a vote on the issue of 
bonds and like financial questions ; many more allow women 
to vote for school officers. Twenty-six of the forty-five states 
recognize the right of women to participate to some degree 
in the choice of public officers and the decision of public 
questions. 

The right to vote usually includes the right to be elected 
to office : hence, in the full woman-suffrage states, women fre- 
quently sit upon juries ; where women have school suffrage, 
they may be and sometimes are elected local and state super- 
intendents ; where they have municipal suffrage, as in Kansas, 
women are sometimes elected mayors ; and in all the states 
women are occasionally appointed to executive boards, partic- 
ularly those relating to charities and corrections. 



§36] Woman Suffrage. 71 

The main argument in favor of woman suffrage is that there 
is no logical reason for discrimination : if the suffrage is a duty, 
women ought to perform it ; if it is a privilege, they ought to 
enjoy it ; if it is a means of education, they ought to profit 
by it. The experience of wo man -suffrage states is, however, 
that though the presence of women at the polls tends to 
take away roughness and violence, the interest of women in 
elections is smaller than that of the men, and after a few years 
only a small proportion of them vote. This is notably the case 
in school elections in states where women have school suffrage, 
though in Boston and Cambridge the woman vote appears to 
hold the balance of power in the election of school committees. 

The principal arguments against woman suffrage are, first, 
that women have domestic duties which are not consonant 
with public service ; and, second, that it is convenient to have 
a select electorate, and that the voting of women does not 
make any permanent and significant difference in the outcome 
of parties, while it does create a new responsibility for women. 
Although full woman suffrage is now making way in the North- 
western communities, many of which have few women in 
proportion, it has for many years made no gain in the older 
communities. On the other hand, school, municipal, and tax 
suffrage, though widely extended, have not interested women 
so much as was expected. 

36. Electoral Districts and Registration. 

Before votes can be cast, two preliminaries are common, — 
districting and registration. The administrative subdivisions 
of the states and territories constitute the districts for the 
choice of the more important officers ; counties make dis- 
tricts for the choice of county officers, cities for the election 
of city officers ; but for the choice of members of Congress 
and of state legislatures, the states must be subdivided by the 
legislatures, and this gives rise to the practice known as the 
"gerrymander." Acts of Congress of February 2, 1872, and 
January 16, 1901, provide that the districts for the choice of 



72 Suffrage and Elections. [§ 36 

representatives shall be composed of contiguous and compact 
territory as nearly equal in population as possible ; but the 
rapid growth of population quickly disturbs the most careful 
apportionment, and legislatures frequently subdivide in irreg- 
ular fashion, so that one party shall have a small majority in 
many districts, and the other party shall have a large majority 
in fewer districts. By this process it is possible to give the 
minority more members than the majority: thus in 1893 one 
Connecticut congressional district had 122,000 inhabitants, 
and the adjoining district had 249,000 ; Chicago, with about 
one third of the population of Illinois, had only one fifth of 
the members of Congress. This process is freely applied 
also in state elections: in 1891 the Supreme Court of Wis- 
consin annulled two state apportionment acts in succession 
because in absolute defiance of the state constitution, and the 
legislature had to be called to pass a third act. The process 
of gerrymandering is a denial of the true system of popular 
government. 

In colonial times, all the people of a town or a county as- 
sembled to cast their votes ; but at present in every state 
small subdivisions are provided, for two reasons : first, in order 
that voters may know each other's faces and thus detect fraud ; 
and second, that there may be time enough to get in the whole 
vote in one day. In New York City there are nearly 1550 
such voting precincts, or about 400 voters to each precinct. 

The unwritten, but nevertheless almost universal, rule is 
that for any elective office a man must live in the district in 
which he is chosen. In Germany or England or France any 
qualified person may be elected to the national legislature from 
any district, and this gives an opportunity for young men to 
win their spurs by contesting close districts, and also makes it 
possible to keep in public life eminent men whose home dis- 
tricts support the other party. In America every councilman 
must live in his ward, every state representative in his county 
or town, every congressman in his district ; and the gerry- 
mander is frequently so employed as to throw the residence of 



§ 37] Districts. 73 

a public man into a district which is hostile to him politi- 
cally. Thus in 1890 the Ohio legislature made a majority 
against Mr. McKinley, and he lost his seat in the House of 
Representatives. 

In about two thirds of the states in the Union there is a 
system of registration before elections. The advantage is that 
it gives time beforehand to settle contested questions as to a 
man's fitness to vote, and to identify him beforehand so as 
to detect him if he represents another voter ; it also offers 
means of preventing some forms of frauds in the count of votes. 
There are two systems of registration. Of the first of these, 
New York is a type : a man must every year present himself, 
usually in person, and see that his name is recorded ; no name 
can legally get on the list unless it is demanded by the voter. 
The other system, employed in Massachusetts, Pennsylvania, 
and many other states, puts a man who has once qualified per- 
manently on the list, until some reason is given for striking him 
off; this leads to dangerous frauds, because false names go on 
and names of dead persons are not expunged. In some cities 
scores of thousands of illegal registrations stand from year to 
year, and are voted by repeaters who go from ward to ward. 
Of course the annual registration practically requires a man to 
appear twice, once to register and once to vote, and therefore 
probably somewhat reduces the vote ; but preliminary regis- 
tration is in cities the only possible safeguard against illegal 
voting on a large scale. 

37. Methods of Voting and Count of Votes. 

The usual method of voting in England down to 1872 was 
viva voce, a system which made public the voter's preferences, 
and which could not be applied at all in elections for a large list 
of officers. In the state of Kentucky, until the new constitution 
of 1 89 1, some of the elections in rural communities continued 
viva voce .• in Jackson County, for instance, the election for sheriff 
consisted in arranging the friends of one candidate on horseback 
on one side of the road and the friends of the other candidate 



74 Suffrage and Elections. [§ 37 

on the other side, and the longest line got the election. At 
present in every state all elections must be by ballot ; first, to 
make possible a secret vote, and, secondly, to preserve the evi- 
dence of the vote cast. 

Originally the ballots were written ; then it was found that 
the candidate had a better chance if his friends provided printed 
tickets beforehand ; then, as the practice developed, tickets 
were prepared for a long list of candidates, the parties fre- 
quently adopting devices or colors which made their ballots 
known. If a man did not wish to vote for everybody on the 
ticket, he erased names, or substituted other names ; this was 
called "scratching," " sphtting," or "cutting." 

In practice the ballots ceased to be secret, since the party 
tickets were usually recognizable even when folded ; and frauds 
were often practised by printing under the party heading a 
ticket which contained candidates of the other party. In 1888 
began a great reform, which has swept over most of the country, 
— the so-called " Australian ballot system," under which all the 
candidates appear upon one ballot, prepared and distributed 
by the state, and the voter indicates on. the ballot his choice 
of candidates. Since all the ballots are alike, and since they 
are prepared in a booth out of sight of other persons, secrecy 
can be maintained. Furthermore, third parties and independ- 
ent movements can get their candidates before the voter with- 
out the former machinery of "strikers" and "heelers," who 
distributed only the tickets for which they were paid. The 
Australian ballot may also furnish evidence against a man who 
votes fraudulently. 

The various forms of Australian ballot are reducible to two : 
in the first, the candidates for each office are arranged in alpha- 
betical order, each accompanied by the name of the party or 
organization which nominated him, and the voter must have 
sufficient intelligence to follow through the ballot and pick out 
his favorites ; in the other type, each party ticket is printed 
in a separate column, and the voter may cast his vote for all the 
candidates of his party by putting a mark opposite the party 



o 

liKPUBLtCAN TICKET. 

For President, 

WILLIAM Mckinley. 

For Vice-President, 
THEODORE ROOSEVELT. 


* 

o 

DEMOCRATIC TICKET. 

For President, 
AVILLUM J, BRTAN. 

For Tic*-President, 
ADIAI E. STEVENSON. 


o 

SOCIALIST LABOR TICKET. 

For President, 
JOSEPH F. MALLONEY. 

For Vice-President, 
VALENTINE REMMEL. 


PKOBIBITIOS TICKFX 

ForPresidenl, 

JOHN G. TTOOLLET. 

For Vice-President, 

HEN'RT B. METCALF. 


INDEPENDENT 
NOMINATION& 

o 

SOCIAL DEMOCRATIC TICKET. 

For President, 

EUGENE V. DEBS. 

For Vice-President, 

JOB HARRmAN. 


BLANK COLUMN. 


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CHARL^R MATCH m. 


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FBAHCre B. MITCHELL 




ROBERT C TITUS 




MAK FORKER, 




WILUAM W, SMITH. 




CARL VOSS 




SAMUEL ! UNDERHILL 




ISRAEL J. MERRITT. 




CHRISTUM SAKKt 




HEKRV M RANDALU 




JULIUS ilALPERR 




SAML.EL ROWLAVD, 




EDWIN KEMPTOV 




CHARLES viLLMER. 




ISAAC K. FUNK. 




VALEKTINE S WORTH 




MICHAEL J DADV. 




EDWARD KAUFMANN. 




/AMES flYRNt 




BENJAMIN REYNOLDS. 




PETER E BURROWED 




CHARLES a RUSSELL 




HENRY GEORGE. jV. 




AHCklE JARROLD. 




ROBERT T STOKES. 




ARTHUR K. HAYNARD. 




JOHM KISSEI. 




WILLIAM I SEATOR 




CHARLES F. A WALSH. 




EDWARD A. EWEZEY.i* 




ALFRED R. PETTITT. 




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- 


RUDOLPH CHARLES BACKER. 




PETER FIEBIGER. 




WILLMM EL BROWN. 




THOMAS PENDERGAST 




JOHN E WALSH. 




JOHN KELLY. 




ROBERT SCOTT. 




FRANZ W. GASTElGEi . 




WJLLIAll E. BFLLLNGS 




SAHUEUKAHN. 




RICHARD GOULD. 




CHARLES W, M=LELLAH 




WILLIAM WOLLNIK. 




HERMAN J. KATZ. 




MICHAEL H. ^^■HALEN. 




EPHRAIM SIFP. 




TIMOTMY.N.HOLDEN. 




HENRY O. VITALJUS. 




FRAMK TJLFORD. 




RICHARD FPTZPATRICK. 




JOHN MCELROY. 




■ -GEORGE GETHIR 




HENRY O. JACKSOH 


( 


SAMUEL S. KOENIG. 




MICHAEL FLVONS . 




RICHARD. KUm-ER. 




EMORY CUMUINCS. 




JAMES W-FORNSIDE 




ARTHUR p. STURGES, 




HENRY HACHEMHISTER. 




CHARLES KEVENEY. 




lOKN UcKEE. 




ANTHONY ; OfeSCKCER. 




JAMES YEREANCE 




JOHN J. RAHBINGTON. 




CHARLES C CRAypOHJ) 




CHARLES' t,.*>nMES. 




HENRY LUX 




KMANUEL W. BLOOUIN'GDALE 




CHARLES FREOERICKNAEI.IlKf^ 




FHEDEHlOt C FULLIHG. 




JEREIUAH T. BROOKS. 




HERMAN OUADE 




WILLIAM SHERER. 




JOHN McOUADE 




LEON H. PILOUT. 




ALBERT r. HULL 




HAiiS HEDRICK. 




FRANK V,,JJ1LLARD. 




JOHN BRISBEN WALKER. 


- 


MACMUS SVENSOR 




CLARENCE M. LYON 




FRANK HERRMANN. 




CLARENCE LEXOVd 




EDWARD STOCKER. 


GEORGE ABELSOR 




■ JAMES.C RIDEB. 




WILLIAM WINKELMAN, 




JOHN N. CORDTS. 




JOHN C HOOfiNBEEK 




OWEN CARHAHER. 




MITCHELL DOWNING. 1 




RICHARD KITCHELT 




PETER McCARTHir- 




THOMAS H. CAMPION. 




MATHEW STEEl. 




NATHANIEL a POWERS. 




WILUAM UPPELT. 




SAMl/EL L UUN50R 




WILUAM H. KEELEB. 




ALBERT W.BROWER. 




LEVT DEDRICK 




WILLIAM NEUMANN. 




WILLIAM S C WILEV. 




ROBERT WEMPLt 




ednWvd bullent. 




SPENCER BlLLlltCTOR 




PEANZ SCHMITT, 




BOVAL NEWTON. 




CHARLES-OSCAR MdlREEDV 




CHRl^rWlN MAHH. 




WILLIAM H. place; 




CHRISTIAN WARD 




■WILUAll T. ONeu 




HENRY £ BARNARD. 




CHRISTtAJJ aoSSBACH. 




JONATHAN E HOAC. 




JOHN H, BOLLARD, 




DAVID JI.AMDERSOK. 




LAURENCE CLANCY. 




JAMES A TRAINOR. 




FREDERICK a OEVBNDORF. 




AMENZOH, BUTTEBFIELO 




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- 


ABRAM B, WEAVER. 




GEORGE E. COFFIR 




WILLUM C CRAY. 




CHARLES WILUAMSON 




THOMAS KEERY. 




FRANK DANKHOFF 




EDWARD H. MILLER. 




CHARLES H, WHEELER. 




KAHSOU B. TRUE. 




GEORGE WELLS SALISBURY, 




JAMES S. white: 




ARTHUR HAY. 




CHARLES S, WILSON 




ROBERT BUSHBV. 




/AMES M. MILNE. 




JOHN.K. MORRIS 




JOHN W. BARRUS. 




JACOB thisSen. 




FRANKLIN D. SHERWOOD 




HOSEA H. flOCKWELI. 




ELMER HARRISOR 








GEORGE C JONEi 




cMAnnMr PRE-vncE 




JAHESJ MAHONEY. 




ROBERT WILL 




WIUJAM B. BOOTR 




JOSEPH G, DOLL 




GEORGE EASTilAN. 




JAMES E CONLEY. 




CHARLES /L RUBY, 




BEN;aMIK C MONTGOMERY 




GEORGE -L WASHBURNE 




CHRISTIAN XLINCK. 




WILUAM SIMOH. 




CHARLES HELSOR 




EDWIN PU7EV. 1 




HERMAN REICR 




CeOBGE' URBAN. Ji. 




JOHN UcCLTRE WILEY. 




JAMES W ShABPE. 




J05EPHH.SKEARER. 




JULIUS GERBER. 




HERBERT C: RICH. 




DANIEL F. TOOMEY. ' 




ROBERT JOHNSON. 




JOHN NICHOLSON. 




ADOLPHJABUNOWSKL 




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AN AUSTRALIAN BALLOT 



§ 37] Methods of Voting. 75 

emblem, which can be recognized by a man who cannot 
read. 

Another method of voting now making headway in the 
country is by machines. Several mechanisms have been per- 
fected, under which a man may vote by going into a booth and 
pulling a lot of knobs, one for each candidate. The advantage 
is the quickness of the system, for the moment the ballot is 
completed .it is also cast ; and the machines are also self- 
counting, so that at the end of the poll the total vote for each 
name on the ballot is shown on dials ; the system thus obviates 
errors and possible frauds in counting complicated votes. 
Voting-machines make their way slowly, partly because of their 
expense ; partly because, if they get out of order, it is difficult 
to keep up the election ; and partly because they make un- 
necessary the force of election officers who are accustomed to 
get a large day's wage. 

In England and in the colonies, elections often lasted several 
days or a week; and for many years after 1787 the choice of 
presidential electors and representatives took place on differ- 
ent days in different states. All the states have now come to 
a system of one single day. Since 1845 all the states are by 
act of Congress compelled to vote for presidential electors on 
the Tuesday after the first Monday in November ; and most 
of them put their state elections on that day. Since 1872 
.that is also the normal day for electing members of Congress. 

The deposit of ballots is subject to many frauds. " Repeat- 
ing " is voting more than once in the same or in different pre- 
cincts. The " marrow-fat " fraud consists in a voter's putting 
in more than one ballot, while the clerk puts down fictitious 
names to cover the extra ballots. The " tissue ballot " system 
allows a voter to put in a handful of tickets at once. Some- 
times ballot-boxes have votes in them before the voting begins, 
and for that reason New York formerly used glass ballot-boxes. 
Previous to the Australian ballot, in some states judges were 
allowed to count the ballots from time to time during the day, 
a process which easily lent itself to fraud. 



j6 Suffrage and Elections. [§ 38 

The result of the election will still be vitiated unless an 
accurate and fair count is held ; and in no part of the repre- 
sentative system has there been so much corruption. Voting- 
machines of course make counts by tellers unnecessary; but 
the usual system is to have the election officials, — usually a 
supervisor and clerks, — • begin counting as soon as the election 
is over. The so-called " straight party tickets " are put in 
bundles and counted, each candidate receiving his credit ; 
there are numerous "split tickets," and every ballot has to 
be carefully examined ; the numbers are then tabulated and 
reported to some state authority. In a hotly-contested elec- 
tion the returns are at once given to the newspapers, and 
within six hours after the closing of the polls on the day of 
the election the result is often known. 

Sometimes elections are very close : a governor of Massa- 
chusetts was once elected by a majority of one ; and in 
the best systems the ballots are preserved until a recount 
can be had. One difficulty is that the Australian ballots are 
numbered, so that it is possible to discover a ballot cast by a 
particular person ; and recounts are sometimes demanded for 
no other purpose. Many states have very careful statutes, 
describing the count of votes and fixing heavy penalties for 
falsifications. New York City, owing to the efforts of Henry 
George, has one of the best systems of counting votes known 
in the United States. 

38. Minority and Proportional Representation. 

To learn the will of the people is easy, if there is only one 
office to fill and only two candidates for the place ; but in 
many elections there are more than two candidates for each 
office : a man who prefers A and if he cannot be elected pre- 
fers B, has no opportunity for making a second choice count. 
In states where in all the sections one party has a preponder- 
ance, a minority numbering many thousands may have few or 
no members in the legislature. Thus in Vermont, where the 
Democrats are about one fifth of the voters, they sometimes 
have not a single member in the legislature, - 



1 



§ 38] Proportional Representation. 77 

To meet these conditions, various schemes of minority and 
proportional representation have been worked out. In the 
minority system each voter has more than one vote, and may 
distribute as he likes : in Illinois, for example, three members 
are chosen to the legislature from each district, and every 
voter has three votes ; if the minority all " plump " for one 
man, he is practically certain to be elected, and the result is 
that in the legislature the minority gets about one third of the 
members. This method has the striking disadvantage that if 
only two candidates are nominated by the majority, and one 
by the minority, the three are almost certain of election, so 
that it is not necessary to put forward strong candidates. 

Proportional representation in its many forms aims to take 
account of second choices, by taking from the candidate hav- 
ing the highest number of votes all those above a majority, and 
giving them to some other person who shall be designated by 
the voter. Of course until all the vote is assembled, canvassed, 
and calculated, you do not know who is elected. In Switzer- 
land, under the system, it has been found that by judicious 
nomination the election of all but a few candidates is certain 
beforehand. Underlying all these schemes is the assumption 
that a man is not represented in the legislature unless he has 
voted for the sitting member ; in practice, members habitually 
represent and consult constituents from the minority, and one 
of the greatest elements of strength in a public man is that he 
has friends outside his own party. At present neither the 
minority nor the proportional system seems to make headway 
in the United States. 

The original idea of American elections was that everybody 
must get a clear majority. At present, almost everywhere in 
the United States, a plurality elects, with the result that the 
person designated may have not more than one third of the 
total vote ; and conceivably the friends of both the other two 
candidates would have united on one to defeat the successful 
man. Nevertheless, in nine cases out of ten, the man who 
gets the plurality would have had a majority if there had been 



78 Suffrage and Elections. [§ 39 

only two candidates ; and the system is instantaneous and so 
convenient that it is appUed even to the choice of the group 
of presidential electors from a particular state. The only 
important elections in which an absolute majority is still re- 
quired are in a few states where the legislature chooses the 
governor if no candidate has the proper majority ; and in the 
choice of senator of the United States, which is held by a 
legislative session, in which it is easy to get a succession of 
ballots. 

39. Popular Votes on Constitutional and Legislative 
Questions. 

The primary idea of elections in America is that they are 
held to select officers of government, including all heads of 
communities (except the president of the United States) and 
many other executive and judicial officers, state, municipal, 
and local. Especially important and. prized is the popular 
choice of all members of legislative bodies (except United 
States senators), because they frame the laws. 

As soon as communities get beyond the point of town-meeting 
or county assembly, where pros and cons can be discussed, it is 
impossible for a large number of people to arrange the details of 
legislation, and to be sure that one clause agrees with another 
or one law with another. Nevertheless, almost from the begin- 
ning of our present government, popular votes have been taken 
on the most important of all forms of legislation, — namely, 
new constitutions and constitutional amendments, and now the 
method is in various ways extending to ordinary legislation. 

I. The Swiss, vvhose government closely resembles that of the 
United States, have adopted our method of popular vote on 
constitutions, and have gone far beyond us by taking the opin- 
ion of the people on specific laws. In some of the cantons of 
Switzerland, every statute, after gohig through the legislative 
council, is subject to a special vote of the people by what is 
called the " compulsory referendum " ; and in some cases the 
law is voted upon by sections, so that a part may be passed 
and the rest rejected. This system undermines the legislature, 



§ 39] Popular Votes. 79 

by making it simply a body which prepares the details of a 
measure but can take no responsibility for its enactment. 

2. A second system is the " optional referendum," which is 
even more widely spread in Switzerland and has taken root in 
America : a law duly passed goes into force, unless a specified 
number of voters petition that it be submitted to a popular 
vote. This is practically a veto power, which is not invoked 
on most laws, and when invoked perhaps results in approval 
of the measure. 

3. Popular votes are applied in the United States in two ways. 
( I ) Under state statutes, on laws relating only to a particular 
municipality or locality ; such as a city charter, or a new system 
of popular improvement, or waterworks, or street viaducts, or 
subscriptions to railroads : thus in 1894 the question of uniting 
the cities of New York and Brooklyn and the smaller surround- 
ing places was submitted to a general popular vote. (2) Under 
general statutes applying to groups of local governments, — as, 
for instance, that no local indebtedness shall be incurred for 
specified objects without the consent of the people. In states 
which have the local-option system of liquor-selling, each local- 
ity votes for itself, from period to period, whether it will or 
will not exercise the privilege of prohibiting the sale of liquor 
within its limits. 

Votes may be taken, under special or general acts, on a 
great variety of subjects, — as the foundation of schools, the 
improvement of roads, fencing in cattle, taking oysters with 
scrapes or dredges, the use of voting machines, and a hundred 
other questions. 

4. The Americans are less accustomed to popular votes on 
state statutes of general obligation. Nevertheless, beginning 
about 1842, states began to put into the constitution provisions 
against the incurring of state debt except by popular vote. 
From 1850 on, popular elections have been held from time 
to time on the location of state capitols and other public 
buildings; and the question of the extension of the suffrage, 
especially of woman suffrage, has repeatedly been subjected to 
the optional referendum. 



8o Suffrage and Elections. [§ 39 

5. The Swiss have a third form of popular vote by which 
statutes that have gone through the legislative forms may be 
submitted to popular vote on the request of a certain number 
of citizens. This system has been adopted by a few states : in 
South Dakota, by a constitutional amendment of 1898, one 
twentieth of the number of voters at the last previous general 
election may demand the submission to popular vote of any 
statute which has recently passed the legislature ; in Nebraska, 
one fifteenth of the state voters may demand a state referen- 
dum, and one fifteenth of the local voters may demand local 
referendum on local ordinances ; in Iowa and California the 
referendum may also be demanded in some of the local 
governments. 

In Switzerland there is also a national referendum on peti- 
tion of 30,000 voters, who may compel about 400,000 other 
voters to come up and express their will. The tendency is 
to reject the statute on referendum, but the same measure 
is sometimes approved on a second popular vote. In the 
United States a referendum on acts of Congress would be 
very difficult and clumsy, and would practically destroy the 
influence of the Senate. 

6. A sixth kind of popular vote is called the initiative, — 
a system by which a given number of voters may on petition 
require the legislature to pass a statute of a designated kind 
and submit it to popular vote, or may actually draw up a bill in 
detail (the so-called " formulative initiative") and demand a 
vote upon it. In 1891 this system was extended to the Swiss 
national government ; but in the three cases in which it was 
tried down to 1898, the proposed bill was rejected by the 
people. So far, this system has been introduced in the United 
States only in South Dakota, Utah, and Oregon ; on some 
local questions in some states, a part of the voters may require 
the holding of an election to decide such questions as the site 
of a county seat, the fencing in of live stock, the estabUshment 
of high schools. In Connecticut twenty-five legal voters may 
insist on a town meeting to vote on the sale of liquor; in 



§39] Popular Votes. 8i 

Utah fifty voters in a small town may demand a vote on a 
free public library ; in South Dakota, Nebraska, and the city 
of San Francisco a specified number of electors may propose 
a measure on any subject, which must be submitted to popu- 
lar vote. In states having no such system the same result 
can be reached by a numerously-signed petition to the state 
legislature. 

What are the advantages and disadvantages of popular legis- 
lation? The advantages plainly are that the people may force 
the hand of apathetic or improperly-influenced legislatures, by 
upsetting legislation which does not reflect the sentiment of the 
community ; the referendum and initiative are both intended to 
arouse public sentiment by giving the voters questions of real 
practical importance to vote upon ; again the local referendum 
adapts general legislation to the needs of the popular com- 
munity. The objections are: (i) People do not take an 
interest in such elections : in Switzerland 570,000 votes were 
cast in 1898 on a law for the nationalization of railways ; but the 
year previous, on a constitutional amendment relative to forests, 
there were only 240,000 votes. In some of the cantons of Switz- 
erland, where legislative questions come up very frequently, 
many people get so tired of making up their minds that they 
will not vote ; and when a statute was passed by Zurich fining 
voters who did not appear on election day, the result was 
simply the casting of thousands of blank ballots. (2) The 
referendum destroys the sense of responsibility of the legisla- 
tures and of governors, and hence of those who vote for legis- 
lators. (3) CompHcated and balanced statutes, involving 
economic and social questions, are hardly to be framed or 
voted upon by a simple yes or no vote. 

Nevertheless, there remains the fact that a legislature which 
unexpectedly develops corruption, or which is subject to irre- 
sponsible chieftains, may be called to order by a popular vote ; 
and that such a system relieves the serious burden upon good 
citizens of watching legislation in order to stop it before it 
goes through the legislature. 

6 



82 Suffrage and Elections. [§4° 

40. E:sercise of the Suffrage. 

A very important question with reference to the suffrage is 
the actual degree of participation of qualified voters. In a 
country like the United States, with a continual stream of 
immigration, a large number of adult men cannot legally vote 
because they cannot legally be enrolled till they have lived five 
years in the country. In 1900, according to the census, there 
were in the states of the United States 20,800,000 men of 
voting age; of these 2,150,000 were unnaturalized foreigners, 
part of them in the country too short a time to be naturalized, 
the rest not sufficiently interested to acquire citizenship. That 
leaves 18,650,000 presumptive voters in addition to perhaps 
150,000 allowed to vote in the states before being naturalized. 
The total vote cast in the presidential election of that year was 
13,960,000 or 74 per cent of the possible vote; the propor- 
tion in 1840 was 78 per cent; in i860, 80 per cent; in 1880, 
81 per cent. 

What has become of the rest of the voters ? Property quah- 
fications have now been abandoned, but the tax qualification 
cuts off perhaps one twentieth of all the votes in the states 
where it is appHed. Moral and intellectual limitations dis- 
qualify over 300,000 men, — namely, prisoners in cells who had 
committed infamous crimes, insane people, and paupers. The 
educational quaUfications of Massachusetts and Connecticut 
actually cut out only a few thousand, but the apparently similar 
qualifications in the Southern states disfranchise several hun- 
dred thousand. Change of residence shortly before an elec- 
tion causes the temporary disfranchisement of perhaps one 
fiftieth of the voters. 

Making deductions for all these causes we account for 
1,700,000 out of the 4,840,000 stay-at-homes ; but a further 
deduction must reasonably be made for accidental causes. 
About 600,000 men are over seventy years of age, and many 
of them are physically unable to get out. Most able-bodied 
men average one week of sickness every year, which cuts out 



§4°] Exercise of the Suffrage. 83 

one fiftieth of the voters below seventy. Various causes take 
perhaps one in fifty of the voters away from home on election 
day. The ordinary accidents of life, sudden calls, forgetful- 
ness, account for another group. Of the men who take the 
trouble to register in the city of New York, about 10 per cent 
do not go to the polls ; that is, about 4,000,000 of the 4,840- 
000 abstentions can be accounted for without imputing neglect. 

In the South the vote is reduced by the general prevention 
of the negro vote either by positive laws or by irregular prac- 
tices. In Southern states with a large rural population, like 
Tennessee and Arkansas, the proportion of voters is very small 
because of the physical difficulty in getting, to the polls. In 
the closely-populated Northern states a presidential election 
will bring out as many as 90 per cent of the actual voters ; and 
there have been instances where a state cast more votes than 
there were known voters. In a presidential election, the num- 
ber of people who stay away because they are not interested to 
vote is very small, smaller than in most stockholder or club 
meetings : the vote upon the Massachusetts constitution of 
1780 was about one twenty-fifth of the population; in the 
presidential election of 1880 it was about one sixth of the 
population. 

In state and local elections abstention is a more serious 
evil: thus in New York City in 1888 the vote was 18 per 
cent of the population ; in the local election of 1890, under 
12 percent; in the election for governor in 1891, about 13 
per cent. In general, local elections call out the smallest 
vote ; but the intense public interest in the government of 
great cities caused in 1901 a vote in New York City only 
25,000 less than in 1900. In cities like Cleveland and 
Chicago and Philadelphia and Detroit the vote on municipal 
elections is now very heavy. 

Whenever in really contested elections the abstentions are 
numerous, the apparent wilful neglect of voters is often a will- 
ingness to accept conditions as they are : if the vote at a 
municipal election is half that at a presidential election, it is 



§4 Suffrage and Elections. [§ 41 

because people are willing to take their local government as it 
comes ; by neglecting to vote, they practically admit that they 
are reasonably satisfied. In some cases a small vote is really 
intended to be a heavy and most effective rebuke on a party 
machine. Thus in 1882 the vote for governor in New York 
was very small, because the voters of one party desired to 
rebuke what they considered the forcing of a candidate by the 
administration ; actually about 200,000 party voters refused to 
come out, and thus they gave a majority of 192,000 to the 
opposing candidate, who thereby won such eclat that two years 
later he was nominated and elected president. 

41. ' Reform of Electoral Methods. 

From the preceding discussion it will be seen that our 
electoral system is by no means perfect : we have some things 
to learn from the experience of other countries, and much 
from our own. First of all, we have no adequate system for 
ascertaining and recording the qualifications of voters, because 
of a painful lack of a proper system of registering births and 
deaths. Thousands of young men vote before they are twenty- 
one, because it is hard legally to estabhsh their age ; thousands 
of names of dead men are kept on voting lists because the 
registry of deaths is not so accurate that it can be depended 
upon for the purification of the lists. The second need is 
thorough registration : Americans move freely from state to 
state and from city to city, and hundreds of thousands of legal 
voters are little known to their fellows. A it^^ states absolutely 
prohibit registration ; many states have not a sufficient system ; 
and the practice of continuous registration is in some cases 
used to cover fictitious voters. The third necessity is for a 
proper method of voting, and this is the reform which has 
most headway in the Union. The Australian ballot ought to be 
extended to the remaining five states, for it requires intelli- 
gence : the provisions of some of the state laws that an illiter- 
ate voter may have his vote marked for him by a friend or 
an official, is really the striking-off of a valuable educational 
qualification. 



§4i] Reform of Electoral Methods. 85 

The English Corrupt Practices Prevention Act of 18S3 
strikes at one evil — the direct and indirect corruption of the 
voter — by requiring every candidate for office to file a sworn 
statement of the amount expended by him or in his behalf in 
the election, whether he wins or loses. This plan is followed 
in thirteen states. 

In most states new legislation is necessary to protect the 
count of votes ; the actual process should be conducted with 
more care and sobriety. Everywhere, as in the best states at 
present, solicitation of votes in and about the polling-places 
should be absolutely prohibited. Ballot-boxes should be so 
constructed as to make it impossible to tamper with them 
before voting begins. The count of votes should everywhere 
be made in the presence of a number of persons, should be 
immediately announced, and should be subject to verification 
and to recount. In many states more thorough legislation is 
necessary to punish the offence of falsifying the vote. 

The fate of republican government depends upon the ability 
of the people to express their will without interference or 
fraud. To stuff the registration lists with fictitious names, to 
miscount the votes, to throw out legal votes on small techni- 
calities, to accept ballots made up in defiance of the provisions 
of the law, — these are betrayals of republican government in 
the hands of its friends. 

Behind all methods of voting, however, must stand an intel- 
ligent public interest in elections. As will be seen in the next 
chapter, one of the main reasons for apathy in elections, 
especially on local questions, is the small influence of the 
average voter in the nomination of candidates. Our present 
remedies are outright bolting, voting for some men on the 
other ticket, or simply scratching off objectionable men on 
one's own ticket. The Australian ballot is a great step because 
it gives opportunity for thoughtful voting ; but the thoughtful 
voter must not only cast his ballot, he must make up his mind 
that if necessary he will sacrifice time and convenience to see 
that other people's ballots are properly cast and properly 
counted. 



CHAPTER V. 

THE PARTY AND THE MACHINE. 

42. References. 

Bibliography: Brookings and Ringwalt, Briefs for Debate (1896), 
Nos. i-ii ; F. W. Dallinger, Nominations for Elective Office (1897), 221- 
224; A. B. Hart, Manual (1908), §§ 103, 104, 206. See also references 
to ch. iv. above. 

Parties : J. A. Woodburn, Pol. Parties (N. Y., 1903) ; M. Ostrogorski, 
Deviocracy and the Organization of Pol. Paj'ties (2 vols., 1902) ; J. Macy, 
Political Parties (1900) ; J. Macy, Party Organization (1904) ; A. Shaw, 
Pol. Problertis (1907), ch. vi; H. Miinsterberg, Americans (1905), ch. ii; 
J. A. Smith, Spirit of Am. Government (1907), ch. viii ; J, D. Hammond, 
Political Parties in the State of N. Y. (2 vols., 1846) ; T. C. Smith, Liberty 
a7td Free-Soil Parties (1897); J. Bryce, A7n. Commonwealth (ed. 1801), 
II, chs. liii-lvi ; F. J. Goodnow, Politics and Administration (1900), chs. ii, 
iii, ix ; H. J. Ford, A7n. Politics ( 1898), chs. vii, xxiii— xxv ; M. Van Buren, 
Pol. Parties (1867) ; R. M. Ormsby, Whig Party (1859); C. MacCarthy, 
Anti-Masonic Party (1903) ; J. D. Long (editor). The Republican Party 
{1888). 

Systems of Nomination : F. W. Dallinger, Nominations for Elective 
Office (1897); J. H. Wigmore, Australian Ballot System (2d ed. 1889); 
J. Bryce, Am. Commonwealth (ed. 1901), II, chs. Ixix-lxxiii ; J. B. Bishop, 
Political Drama (1904), part i ; F. J. Goodno\^r, Administrative Law 
(1905), Book IV, ch. ii ; National Municipal League, Report on Munici- 
pal Nominations. 

Boss-Rule : F. J. Goodnow, Politics and Administration (1900), ch. 
viii; T. '^oo?,&v^t, American Ideals (1897), No. 6 ; D. B. Eaton, Govern- 
ment of Mtmicipalities (1899), chs. iy-vi; G. Myers, Tammany Hall 
(1901); J. Bryce, Am. Commonwealth (ed. 1901), II, chs. Ivii, Ix-lxiv, 
Ixviii, Ixxiv, Ixxv, Ixxxviii, Ixxxix ; E. L. Godkin, Problems of Modern 
Democracy (1897), No. 4; A. B. Hart, Natiottal Ideals {Am. Nation, 
XXVI, 1907), ch. ix; F. C. Howe, City the Hope of Democracy (1905), 
ch. vii; A. Stickney, Organized Democracy (1906), ch. i ; The N'ation 
(weekly periodical, from 1865 to 1907). 

86 



§ 43] History of Parties. 87 

the policy of the government, or to hold fast to what they have 
. acquired. The moment that two individuals habitually con- 
sult together and act together on matters of government, we 
have the nucleus of a political party ; and such association of 
men of like minds is the necessary condition of popular gov- 
ernment. 

In England, distinct political parties began about the time 
of the struggle between the Cavaliers and the Roundheads, in 
the Stuart period. After the Revolution of 1688, the adherents 
of the deposed Stuarts were called Tories, but until a few years 
before the Revolution their rivals the Whigs practically con- 
trolled the government. King George III in 1760 threw in 
his lot with the Tories, and they were in power most of the 
time till the end of the Revolutionary War. 

In the colonies, parties sprang up as soon as representative 
government was established ; but the main centre of political 
difficulty was the governor's authority. The royal governors 
were always in hot water with their people over questions of 
taxation, of land system, of military defence, and so on ; and 
the parties were in essence the governors' friends and the op- 
position. There were no general American parties until 1765, 
when the friends and opponents of the Stamp Act became 
sharply divided. At the beginning of the Revolution, in every 
colony the patriot party was forcibly contested by the royalists, 
commonly called Tories. In every colony the patriots got 
possession of the state government, orga;nized it, and framed a 
new constitution ; and the Tories absolutely disappeared as a 
political power. 

The first development of national parties was the division 
over the ratification of the constitution in 1787. Throughout 
the country, the friends of the constitution organized as " Fed- 
eralists " and stood together : the Antifederalist opponents of 
the constitution kept up the fight as long as they could, but 
within two years their party absolutely vanished. The gen- 
eral elements of separation, however, were speedily crystallizefl 
into two great recognized political parties, the Federalists 



8 8 Party and Machine. [§ 43 

and the Antifederalists. The Federalists included most of 
the commercial and industrial interests, the ship-owners and 
manufacturers ; and the general principle of the party was sub- 
mission to intelligent leadership for the protection of property 
and the maintenance of order. The Antifederalists, for a 
time called Democrats, under Jefferson's guidance speedily 
took the name of Republicans, and had for their basal principle 
the rights of the individual and the maintenance of personal 
liberty and independence. 

The Federal party lost the presidency in 1801, and by 
1822 died out in the states. The Republicans, now frequently 
called Democratic Republicans, were in full control, took over 
many of the former Federalist principles, and attracted many 
old Federalists, especially John Quincy Adams. From about 
181 6 to 1832 there were no distinct party issues ; men divided 
on personal grounds, and on such issues as the anti-masonic 
agitation. This period, the earlier part of which has been 
called the Era of Good Feeling, was really a period of bitter- 
ness and rancor and legislative ineptitude. It was terminated 
between 1829 and 1832 by Andrew Jackson, who hewed out 
a new set of political principles : he extended the ideas of 
Jefferson to cover opposition to a national bank, high tariff, 
and national internal improvements. Gradually Jackson's 
friends and supporters took the name of the Democratic 
party ; Jackson's opponents concentrated and took the name 
of the Whig party, and from. 1840 to 1S52 those two parties 
alternated in control of the presidency and of Congress. 

Up to 1840, no third party had been long-lived ; but the op- 
ponents of slavery founded the so-called " Liberty " party, later 
the Free Soil party, which in 1840 polled 7,000 votes ; in 1844, 
about 60,000; in 1848, 300,000. In 1852, the Whig party 
broke up on the question of slavery ; in 1856, the Anti-slavery 
party all but elected its president; and in i860 that party 
elected Abraham Lincoln president. 

During and after the Civil War, the Repubhcan party stood 
at the same time for the vast interests of capital and as the 



§ 44] Party Organization. 89 

great defender of human liberty. The Democratic party still 
stood on its old ground for as little government as possible. 
In 1884, a Democratic president was elected for the first time 
since 1856. The various third parties which had been formed 
just after the Civil War died out : the issue was distinctly 
between the Republicans and the Democrats. There was 
again an alternation: in 1880 a Repubhcan, Mr. Garfield; 
in 1884, a Democrat, Mr. Cleveland; in 1888, a Republican, 
Mr. Harrison; in 1892, a Democrat, Mr. Cleveland again; 
in 1896 a RepubUcan, Mr. McKinley ; and at this day the 
two parties which have confronted each other ever since the 
Civil War are still strong, vigorous, well organized, and con- 
stantly opposing each other in the national, state, and local 
governments. 

44. Party Organization and Party Committees. 

Parties do not conduct themselves, they require careful and 
intelligent direction by individuals ; and those individuals, the 
party managers, tend to take upon themselves all the party 
functions, — designation of candidates, management of cam- 
paigns, conduct of elections, statement of party principles, and 
adoption of legislative policy. 

Until recently a party was in the eyes of the law simply a 
voluntary association of individuals, like a club or a church : 
no political party is incorporated ; no party as such can make 
contracts, incur debts, or enforce its rights by suit ; men join 
a party by voting with it ; men retire from it by refusing to 
vote with it. Nevertheless, this nominally free and open or- 
ganization has become one of the most permanent, powerful, 
and effective forces in the whole country. 

How does a party maintain its hold upon its members ? To 
a very large degree the sons of party men will vote their 
fathers' ticket. Sometimes the " first voters " are an element 
of uncertainty, especially when new questions come up. Par- 
ties are not much strengthened by men's changing permanently 
from other living organizations, although in 1862 many Demo- 



90 Party and Machine. [§ 44 

crats became Republicans and in 1872 and 1884 large numbers 
of former Republicans became Democrats. Emigrants much 
affect the complexion of parties, and there is a kind of race 
choice: Irishmen prefer the Democratic party; Germans are 
more likely to choose the Republican party. 

Nevertheless, there is always a class of voters who do not 
count themselves as party men, and vote on one side or the 
other according as the principles of each attract them ; and 
in hot campaigns, like those of 1884 and 1896, thousands 
of voters pass for the time from one column to the other. 
Against such defection the party managers are always on the 
watch, for a party, like an army, can accomplish its work 
only by joint action of its members ; yet it is an army which 
melts away without possibility of court martial, or sits in its 
tents if it does not like the war. Hence successful party 
managers must learn the temper of their followers, and must 
placate them by promising popular measures and by nomi- 
nating acceptable candidates. To the party manager, the 
good man is he who always votes the straight party ticket : 
it is thought contrary to party honor to strike off a single 
name from the regular list of nominations ; a man who is 
known even once to have voted for a candidate of the other 
party, especially in a national election, is suspected, and even 
though he comes back to the fold perhaps may never receive 
a nomination. 

In the management of parties, the main instrument is the 
standing party committee. National parties have a committee 
of one member from each state, the chairman of which is in a 
position of enormous influence. The national committee men 
are designated every year by the delegation of their states at 
the national convention, but have the right to fill vacancies 
and to select an executive committee which does most of the 
work. The state committees have the power to fix the time 
and place for the meeting of state conventions, and in many 
cases prepare the work of those conventions in advance. 
They even draw up and discuss platforms beforehand. Every 



§45] Party Committees. 91 

city has a similar committee, positions on whicli are often held 
for many years. 

Quiet men, little known in public life, serve on these com- 
mittees, and make the prime decisions on political questions. 
One of their functions is to raise and apportion funds for 
campaign purposes ; they send out appeals to well-to-do mem- 
bers of the party ; wherever they can, they also assess the office- 
holders of the party ; but since the civil service act of 1 883, this 
practice is forbidden by law, so far as federal officials are con- 
cerned. In many states they habitually require great corpora- 
tions, especially traction companies, to pay large sums to the 
party treasury, the consideration being a tacit understanding 
that the party will be pleasant when the corporation wishes 
favors. Some corporations subscribe to the campaign fund 
of both parties, so that they may always have a friend at 
court. 

When the campaign is once under way, a sub-committee or 
a separate campaign committee is appointed, which arranges 
for political meetings, assigns speakers, and in general acts as 
counsellor and protector for the local political organizations. 
National committees now make much of the literary depart- 
ment : in 1896 the republican committee had for weeks a large 
building in Chicago, and sent out daily many tons of mail, 
amounting to a total of several million pieces. Such docu- 
ments may be translated and printed in a dozen different 
languages. 

45. The Caucus. 

In small democratic communities like the New England 
towns or the Southern counties, it is easy for a man who wants 
to be elected to an office to make his desires known : to this 
day notice is occasionally given in the public press that so and 
so is a candidate for such an office. Then, in a town of ten 
thousand inhabitants, all the intelhgent people know all the 
principal men of the place by name or on sight. When, how- 
ever, we take a large community Uke a state or a municipality. 



92 Party and Machine. [§45 

it is likely that at a given election not one voter in twenty will 
know personally more than one or two of the candidates for 
whom he is voting; and in a city ward with a population of 
ten thousand, successful men of great worth may hardly be 
known by name to their next-door neighbors. To make de- 
mocracy work under such conditions, the voter must have some 
principle of guidance in selecting his candidates ; and he de- 
pends on the nomination of a representative party candidate. 

Party nominations are usually made by one of two organi- 
zations, — the primary convention, often called a caucus, and 
the nominating delegate convention. The primary election is 
intended to be a kind of town-meeting for the members of 
the party within a limited territorial area ; it is supposed that 
they know each other, and that they will recognize names sub- 
mitted to them for local nominations. The primary also chooses 
delegates to county or state conventions, and thus indirectly 
to national conventions : if the friends of a statesman wish to 
make him president, they must in the end secure support in 
the primaries in thousands of places all over the country. 
Hence it is apparent that to take part in some primary elec- 
tion is the duty of every good citizen ; but in many states 
membership in the caucus is given, not to all the voters of the 
party, but to a select coterie who fill their own vacancies. This 
was the case in New York City until a few years ago : the 
other voters simply stood aside and had to accept what was 
put before them. 

The first difficulty in a caucus is to determine who shall 
take part. In many cases caucuses are packed by voters of 
the other party, who thus help nominate the candidates of their 
rivals, and naturally are not eager that the best man shall be 
nominated ; and there have been comical cases in which, in 
the same city, Democrats have practically dictated Republican 
nominations, and Republicans have controlled Democratic 
caucuses. 

Many states, Massachusetts being the most prominent, have 
enacted caucus laws, which provide that every member of a 



§46] The Caucus. 93 

party shall be allowed to attend his caucus ; which forbid any 
one to attend who does not show that he is an adherent to the 
party faith ; and which put the officers of the caucus under legal 
responsibihty to preside justly, to count the votes accurately, 
and to give the minority a fair chance. The effect of such 
laws is wider than appears upon the face, for they make the 
caucus a part of the machinery of government : the state has 
to take legislative notice of the fact that there are political 
parties ; it assumes the responsibility of deciding who is really 
a member of this or that political party, and which of two 
rival organizations is " regular." 

Within the caucuses there are practical difficulties, (i) They 
are often noisy, disagreeable, and protracted. (2) In a very 
large proportion of cases a " slate " is made up by men who 
can control large bodies of votes (a " slate " is a list of persons 
selected beforehand to be designated by the meeting) . (3) All 
public meetings must in the last resort depend upon the honesty 
of the chairman, — if he says the ayes have it when the noes 
really have it, the ayes win, and hence a corrupt chairman 
may defeat the desires of a plain majority. (4) The caucus 
appoints delegates to the county, city, district, or state conven- 
tions : where the caucuses are honestly carried on, these del- 
egates ought to represent the majority opinion within a party ; 
but, if dishonestly managed, a small minority of the party voters 
may succeed in sending to the convention enough delegates to 
nominate their candidates. The public-spirited voter finds it 
hard to influence caucus action. 

46. The Nominating Convention. 

The other machinery for selecting candidates is the nomi- 
nating convention, which first appeared in 1 788 in Pennsylvania. 
For many years it was an arena where the strength of rival 
candidates was tested, and this is still the case in the national 
convention ; but the local conventions, and even some state 
conventions, are now in many cases simply a cut-and-dried 
affair, to ratify a result reached beforehand by' the party 



94 Party and Machine. [§ 46 

leaders. In the first place, a very common method is to " in- 
struct " the delegates from the primaries as to the persons 
they shall vote for : this means that, from the first, the conven- 
tion is not a body of persons to deliberate and select the best 
man, but a set of ambassadors from the localities. Usually the 
conventions are large ; in Massachusetts as many as 2,200 
delegates are elected every year to each of the party state 
conventions. Before assembling, the party committee pre- 
pares a list of officers of the convention, including a man 
designated for the permanent president ; and as soon as elected 
he makes a speech setting forth the party principles. 

The difficulty that most often disturbs the state convention 
is the appearance of rival delegations, each claiming to be the 
rightful representative of the voters of a particular district. A 
committee on credentials is appointed to consider such cases, 
and makes a report ; sometimes the nomination depends upon 
the seating or the unseating of a particular delegation. The 
natural tendency of the party leaders is to accept the delega- 
tion which is " regular," which represents " the organization," 
— that is, which has the support of the men who have been 
accustomed to take charge of party matters in the district from 
which the delegation comes and are in relation with the state 
committee. A method very frequently followed is to admit 
both delegations, each casting half the vote from the district. 

Sometimes local and even state conventions get into an up- 
roar. In September, 1896, on the day before a Massachusetts 
convention, a number of delegates and contesting delegates 
held a meeting in the hall where the convention was to occur, 
and resolved to occupy the room till the convention assembled 
the next day. When the time came for the convention, there- 
fore, about 500 delegates were already in their seats; the 
remaining delegates were crowded outside, and the police 
declined to open the doors, so that the members in the hall 
proceeded to organize a convention and to nominate a candi- 
date. Meanwhile the state committee had called the rest of the 
convention in another hall, where they duly organized and 



§ 47] Nominating Conventions. 95 

made their nomination for governor. The result was two cer- 
tificates of nominations sent to the state government ; and an 
official election commission was obliged to decide which con- 
vention had the regular party nomination. 

The state conventions not only nominate state officers, but 
also designate members of the state committee, and often dele- 
gates to the national convention ; and in addition they adopt a 
platform of party principles. These state platforms are usually 
not much regarded except in times of political unrest, when 
the attitude of a state convention may presage the attitude of 
the voters of the state on questions of public policy. Wher- 
ever the party convention has degenerated into a cut-and- 
dried preconcert of a few party managers who make up a 
ticket, such a convention is simply a mask for a personal and 
despotic system of nominations, and might well be omitted 
altogether. 

47. National Conventions. 

The enthusiast who loves a fight is still gratified- by the 
national party convention, which is subject to interesting 
waves of excitement, and the result of which is as yet uncon- 
trolled by any previous arrangement. The original method of 
designating candidates for national office was by a caucus of 
the party members of Congress at the seat of government. 
Such caucuses designated the party candidates in 1796 and 
1800 ; and down to 1820 the caucus nominations were usually 
taken up by the country : the difficulty was that a district rep- 
resented by Federalists had no representation in the Republi- 
can caucus ; and there was a general feeling that the work of 
the caucus was selfish and partisan. It broke down in 1824. 

The next method of presidential nomination was by state 
legislatures, of which a conspicuous example was the setting up 
of Jackson by the legislature of Tennessee in 1822, and again 
in 1825 after his first defeat. This system was obviously 
clumsy, and did not represent the whole country. Hence it 
was superseded by a national delegate convention, made pos- 
sible by the improvements in transportation, by steamers, and 



96 Party and Machine. [§ 47 

later by railroads: 1840 is the first year in which both the 
two great parties had regular conventions, nominated candi- 
dates, and drew up platforms. From that time on, conven- 
tions have regularly been held by the two great parties, and 
frequently by third parties. 

Until i860 the national conventions were held in small halls, 
sometimes in small cities ; the Chicago (Republican) conven- 
tion of i860 was the first to be held in a great auditorium, 
intended to give ten thousand people a chance to see the per- 
formance. The conventions are now always held in a large 
city, and last several days. The result of the hippodrome 
system is of course that members of conventions consciously 
or unconsciously talk and vote with a view to the galleries, 
and the galleries do all they can to affect the minds of the 
delegates. The usual membership is two for each congres- 
sional district, four at large from each state, and six from each 
territory, making a total of 994. It is customary to appoint a 
large number of " alternates," who have the right of attending, 
and for whom seats must be found ; and the press is amply 
accommodated. The organization of the national convention 
is like that of state conventions : the meeting is called to 
order by a temporary chairman designated by the national 
committee, who makes a speech ; a permanent chairman is 
then elected, and a committee on credentials is appointed ; 
in case of serious contests no work can be done till that 
committee reports. 

A large number of delegates always come from states which 
cannot possiby cast any electoral votes for the candidate of 
the convention and are httle controlled by public opinion ; 
delegates from such states sometimes run out of money if the 
convention is prolonged, and their expenses are paid for them 
by the friend of some candidate. With all these drawbacks, 
the national conventions are a reasonable reflex of the public 
sentiment of the parties. The platform is sometimes drawn 
up before the nominations, especially if it is desired to lay 
down a principle which shall bind some particular candidate ; 



§ 47] National Conventions. 97 

wherever there is a great dissension in the party, it is likely to 
be expressed in the debate on the platform. 

The making of the platform requires the greatest skill if 
there is a division of opinion within the party. The Demo- 
cratic party has a habit of reiterating its platforms of previous 
years, with additions ; other parti^ usually make up an entirely 
new document. In 1896 the drafting of a gold plank in the 
platform of the Republican convention at St. Louis was so 
important that three or four men have contended for the 
honor of having framed it. A frequent form of statement on 
serious questions is the so-called "straddle," — that is, a 
declaration which means anything to anybody. Nevertheless, 
the party platform is accepted throughout the country as a 
statement of the principles and intentions of the party, and 
great use is made of it in the campaign. 

In a large convention, only a few persons who have been 
designated beforehand can be allowed to speak on any ques- 
tion. At Chicago in 1896, Mr. Bryan, who had already been 
selected by a large fraction of the Democratic party as their 
candidate, came forward and made a speech which at once 
stamped him as a leader and greatly aided him to get the 
nomination. 

When the organization is complete and the question of con- 
testing delegations settled, and the platform is out of the way, 
the next thing is the nomination of the candidates. The dif- 
ferent aspirants for the suffrages of the convention are put 
forward in elaborate speeches by their friends, speeches which 
sometimes unexpectedly furnish a war-cry ; as in the case 
where an orator declared that " we love our candidate for the 
enemies he has made " ; or another who put in nomination 
"gifted, gallant, glorious Blaine," "plumed knight," "our 
Henry of Navarre." Ever since i860 it has been the habit of 
the spectators to express their sentiment by uproarious applause, 
when the name of the person brought before the convention is 
first mentioned : thus, in 1884, the mention of the name of 
Mr. Blaine brought out twenty minutes of continuous applause, 

7 



98 Party and Machine. [§ 48 

wave after wave. The effect of this participation by the gal- 
leries is doubtful ; it probably makes no more impression on 
the nerves of the party managers than the cries of the specta- 
tors on an experienced base-ball player. 

After the nomination the candidate is notified by a com- 
mittee, and makes a speech or writes a brief letter; later on 
there is sometimes a mass-n^^tog, at which he makes a 
longer speech ; and he eventually writes a careful letter of ac- 
ceptance, in which he states his principles and expounds the 
party platform. 

Although it is quite possible in state conventions to nomi- 
nate men who are unknown to a large majority of the delegates, 
the national conventions almost universally designate men of 
reputation and character. People have such a sense of the 
importance of the office of president, that, although weak men 
have sometimes been nominated and even elected, no raati has 
ever been successful in a presidential election who has not had 
a previous experience of public life and who was not well 
known in some parts of the country. Even Franklin Pierce 
had been in Congress and had served in the Mexican War. 

48. The Machine and the Boss. 

Those persons, often very few in number, who control the 
regular routine of party action, take upon themselves the name 
of " the organization " ; by their opponents, within or without 
their party, they are habitually called " the machine." There 
is nothing vicious in party organization, there is nothing strange 
or immoral in intelligent acceptance of the management of a 
few persons ; every one is aware that charitable and social 
organizations of all kinds are set in motion by a few minds. 
" The organization " must undertake the detail of the neces- 
sary and perfectly legitimate work of keeping track of the 
voters of the party, notifying them of caucuses and elections, 
sending out campaign literature, providing halls and speakers 
for campaigns. The organization becomes dangerous when it 
passes beyond initiative and suggestion and routine work, and 



§ 48] The Machine. 99 

assumes the sole right to select persons for party nomination ; 
or when, by preventing a fair expression of the will of the 
party voters, it forces unfit candidates upon the ticket; or 
when, going to the furthest extreme, it arranges with the worst 
elements in the other party for a division of the public employ- 
ments and public contracts for private benefit. " The politi- 
cal machine," like every other machine, works good or bad 
results according to the will of the operator. 

Throughout the United States, in the cities, towns, villages, 
and rural communities will be found conclaves of politicians 
who are recognized, often for years together, as the men to be 
consulted by the party chieftains ; and wherever politics are 
too highly organized, especially in the cities, these subordinates 
become the agents for the exercise of arbitrary party manage- 
ment. The most honest and straightforward political leaders, 
conducting elections with perfect fairness, must nevertheless 
depend for their political success upon voters ; and unless they 
carry elections, at least occasionally, their party has very little 
function or significance. Hence for the support of the organi- 
zation it is necessary that the voters be known and be brought 
to their duty ; and the subordinates, who frequently occupy 
small offices, are expected to " hold the vote." In most coun- 
try districts, they simply keep the men of their party up to 
the mark ; but in cities of every size, and particularly the larg- 
est, such leaders gradually accumulate a following which will 
vote any ticket at the orders of the chieftain. Thus is estab- 
lished in American politics something very like the old feudal 
system in European government : the local man, often called 
a " heeler," has his body of adherents, whom he holds in ser- 
vice at the call of his superior ; that superior in turn must hold 
his collection of votes at the service of the chieftain; in pri- 
maries and conventions also the heeler and the district leader 
often absolutely control large blocks of votes. Hence, in order 
to get a nomination, the candidate must somehow secure the 
support of the party chieftains. 

So far the political voter may still be loyal to his great party 



I oo Party and Machine. [§ 48 

leaders, just as the vassal of a lord was nominally tjie subject 
of his king ; but in very highly- organized political parties, 
the stock voter will accept the orders of his suzerain to vote 
against his party. This makes possible the political " deal," 
which means that the heads of rival parties agree each to sup- 
port some of the candidates of the other's ticket, thus rendering 
the election of the least desirable men almost a certainty. Re- 
publican government disappears when the vote can be trans- 
ferred as a chattel from one voting camp into another. 

How does the machine keep its hold upon the voters, many 
of whom are only dimly conscious of its terrible power? 
Partly by punishments, especially by the marking for exclusion 
from all future office and advantages of any man who shows 
too much independence ; much more by positive benefits. It 
must not be supposed that even in the most corrupt city gov- 
ernments the majority of the voters are simply tools. They are 
kept to their party adherence by a conviction that adherence 
brings them something worth having : first of all and most im- 
portant, the chance of being elected or appointed to an office 
carrying with it dignity, power, and salary ; in the second 
place, aid and protection in business, lawful or unlawful; in 
the third place, positive and unceasing relief to the wants of 
poor people. Thousands are the tons of coal and the barrels 
of flour furnished to the poor and suffering by poUtical leaders, 
who often feel a genuine friendship and interest in their people ; 
and it is not in human nature for the recipients of such favors 
to vote against their benefactor. 

The inevitable tendency of a highly-organized machine is 
to bring each organization into the control of a single man, 
who is popularly called " the boss." Again, the principle of 
the political leadership of a man of power is not harmful : 
it is as old as popular government ; it everywhere appears 
in the midst of free institutions. In one sense, Chatham 
was a boss, and Gladstone and Thomas Jefferson and Andrew 
Jackson and Abraham Lincoln ; that is, these were all men 
who towered above their fellows^ had very positive views as 



§ 48] The Boss. loi 

to a politieal policy, and laid down principles which other men 
accepted under their guidance. They were also men who ac- 
cepted the highest political responsibilities, who wrote or spoke 
in defence of their principles, who led men, not because they 
could combine votes, but because they had high aims. 

The " boss," in the common acceptation of the term, is a 
man who concerns himself little with policies, and much with 
the bringing together of a majority which will enable him to 
keep his friends in office. The boss is sometimes a high 
officer in the government, either state or national ; quite as 
often he is a private individual who makes but does not take 
political office.- Some bosses have been religious men, some 
have been unconvicted murderers ; that makes little difference 
to their success, because the boss is powerful, not through his 
private character, but through his masterly capacity of keeping 
up that combination of private interests which constitutes the 
machine. Bosses increase, simply because experience shows 
that one leader acting through a strong organization is more 
likely to win elections than a conclave or oligarchy of similar 
leaders. 

The boss is usually a man who has a vast number of friends, 
some of them won by admiration of his qualities, some of them 
attracted by all sorts of advantages thrown in their way 
through the great man's influence : a struggUng young lawyer 
gets a case from an intimate friend of the boss and the promise 
of more business ; the enterprising young business man finds 
that the boss will endorse for him at the bank ; the promising 
young editor gets public printing. These are not all acts of 
bribery ; they may be simply methods by which the political 
leader marshals his followers. If the boss had an immense 
fortune which he was expending in these benevolent ways, he 
would not be so much criticised : the wrong is that so far as 
his acts cost money, they eventually come out of the public 
treasury, directly or indirectly. Some bosses are perfectly 
content to make no financial profit out of their enterprise; 
others accumulate fortunes : in either case, the harm done to 



I02 Party and Machine. [§48 

the public is the same ; for the corrupt boss enjoys the sense 
of power, not that he may increase the happiness and welfare 
of his countrymen, but that he and his friends may retain 
the power of spending public money in part for private ends. 
The most successful bosses raise the necessary funds for their 
operations by assessments upon large corporations ; but in the 
end these corporations recoup themselves by withholding ser- 
vice to which the public is entitled, or by securing privileges 
which otherwise they could not have. The great objection to 
the boss is that he makes out of politics, which is a means 
of serving public interest, a private and almost a commercial 
enterprise ; and that thereby he is demoralizing the public 
service. Well-to-do people can always protect themselves 
from any serious harm arising from boss government. It is 
the poor people, the friendless people, who lose most and 
suffer most from his sordid rule. 

Where there is a boss, the feudal system in politics is com- 
plete : he stands as sovereign ; the district leaders, the heelers, 
and the voters all in succession owe him allegiance ; he makes 
his power effective by his almost absolute control over the can- 
didates to be nominated by his party. Hence the ablest and 
most respectable men frequently make terms of some kind 
with the boss. In the worst instances, they buy their nomina- 
tions by large contributions to the " campaign fund " ; in other 
cases, they accept nomination with the tacit understanding that 
if elected they will deal paternally with the supporters of the 
boss. Through his control of nominations to the state legisla- 
ture, the boss in many ways dictates legislation : if his party 
has the majority, a measure that he endorses is perforce ac- 
cepted by his men in the legislature • a measure that he opposes 
is remorselessly cut out. This leads, in the blackest cases, to 
an habitual dicker between the boss and corporations which 
desire legislation : he agrees that in consideration of money 
duly paid to him, or for advantages to his friends through the 
corporation, he will deliver the legislation desired by such cor- 
porations. When public franchises valued at many millions 



§ 48] The Boss. 



I o 



are given away by legislatures or city councils, they are given 
for some kind of consideration, either political support or 
actual money. 

This is the lowest type of so-called " popular government " : 
a legislature in which the majority of members owe their nomi- 
nation to an organization in which one man rules ; a governor 
often springing from the same source ; other officers owing 
their appointment to the same influence. When such a situa- 
tion prevails, it constitutes nothing in the world but a tyranny 
under the forms of free government. Such tyrannies would 
inevitably lead to political revolution and civil war in the 
United States, as they have in all other countries and in all 
ages of ^;he world, but for two reasons. First, the boss must 
after all satisfy his followers that he can win, and in order to 
keep them in line he must nominate some candidates that he 
does not like and accept some unpalatable policies ; like the 
czar of Russia, the boss of an American city has to take some 
account of public sentiment. In the second place, sooner or 
later American freemen get tired of personal government, and 
get up some sort of combination of the better elements in all 
parties to deprive the boss of his majority ; whereupon he be- 
comes helpless. In this last condition, the boss usually fights 
by falsifying election returns ; and the only remedy in such a 
case is for respectable members of the boss's party en masse 
to desert him and vote for any promising candidate who can 
be elected against him. 

In this sketch no reflection upon the ordinary American 
voter or the ordinary American public man is intended. 
American popular government is in principle a government of 
the majority for the benefit of the public. When hundreds 
of thousands of voters obey without demur a single will, it 
results in the establishment of a camorra, — a political state 
within a state, a part of the citizens organized for the purpose 
of securing privileges from the government from which their 
fellow-citizens are excluded ; and in many cases it is simply 
the rule of an organized, determined, and unscrupulous minority 
over a stupid majority. 



I04 Party and Machine. [§49 

49. Influencing Voters. 

In most elections, from year to year, the majority of the 
men who go to the polls will vote the " straight ticket " of 
their regular party ; the number of voters who can in any way 
be brought to change their habitual vote is rarely more than 
one fifth of the whole. In the election in New York City in 
1901, if one voter in thirty-six had voted the other way, there 
would not have been a change in administration. 

(i) The most ordinary influence on voters is simple persua- 
sion. In some parts of the country, especially in the South, there 
is joint discussion of public issues, listened to by both sides. In 
the Northern states, political meetings are usually attended only 
by members of the party that holds them, who have not come 
to have their opinions changed, but to have them confirmed. 

(2) The newspaper is of course of great influence over voters. 
Newspapers frequently take new ground, and sometimes in a 
hot campaign change over from one side to the other ; but, 
again, most Americans read only the newspapers of their own 
party, and hear very little of the argument of the other side. 
Hence the importance of special campaign literature ; for in- 
stance, in 1896, the Republican National Committee deluged 
the state of Iowa with specially-prepared political tracts, mailed 
to individual voters whom they supposed to be making up their 
minds on the question of the gold standard. 

(3) Another method of influencing voters is by intimida- 
tion, — sometimes nothing more than the disapproval of a man 
who votes unlike his neighbors, sometimes fierce and cruel per- 
sonal abuse, sometimes threat of dismissal from employment. 
The Australian ballot has been favored by labor organizations 
because it enables the workman to escape from this form of 
oppression, since it is almost impossible to find out how a. 
man has voted unless he himself discloses it. 

(4) Farther down still is the brutal violence at the polls, of 
which there have been many examples in American history. 
The usual form is for friends of one party to drive away the 



§49] Influencing Voters. 105 

watchers of the other party, or to threaten voters when they 
offer their ballots. With the introduction of metropolitan 
police, since i860, this violence has become less common in 
large cities ; and the Australian ballot laws, which in many 
cases forbid the assemblage of persons about the polls, take 
away the pretext of violence. However, since the Civil War 
there have been some cases of voters driven en masse from 
the polls by bodies of armed men. Such practices are the 
destruction of free government ; for if A and B stand together 
to drive from the polls their brethren C and D, who are 
equally legal voters^ the time may come when the A's will 
unite to keep their brother B's from the suffrage. If policies 
cannot be changed by orderly votes, government ceases to be 
republican and becomes military ; and mihtary government 
tends to despotism. 

(5) Another too frequent method is the corruption of voters. 
Bribery is as old as votes, — very frequent in the Greek and 
Roman republics; for half a century, from 1725 to 1775, the 
recognized method of getting a government majority in the 
House of Commons ; frequently practised in the colonies ; 
and to this day one of the most widespread and demoralizing 
influences. The most subtle form of bribery is to pay a man 
on election day for peddling tickets, for getting out the voters, 
or for reporting the vote. Another form is the purchase of 
" political movements " : temporary third parties are set up 
for the express purpose of being bought off in a block. 
Another method is to hire men to stay away from the polls, 
one of the most dangerous of all forms of bribery because it 
cannot be detected by any ballot device. 

(6) Perhaps the baldest form is to pay money outright for 
votes : candidates for offices are often assessed thousands of 
dollars for campaign funds ; and cases have been known where 
they have gone from polling- place to polhng- place, actually 
giving out rolls of bills to be distributed among the voters. 
The indiscreet written advice of a political leader in 1888, to 
secure the "floaters in blocks of five," was an unblushing ad- 



io6 Party and Machine. [§5° 

mission of the worst form of bribery, — the gathering up of 
tramps and loose characters, corralled in warehouses like 
cattle, let out in gangs of five with a watcher to deposit their 
votes before their money is paid. This is a shameful spectacle ; 
and although in most communities only a small proportion of 
the voters will sell their birthright, yet that small proportion 
may be just enough to turn the scale. 

It is needless to say that the bribed voter is no voter, that 
he is simply a pawn in the hands of a man or the organization 
that pays him. In most states there are strict laws against 
either giving or receiving bribes ; but bribery is an ofifence 
extremely difficult to prove, because neither party desires that 
the transaction be made public. There have been cases in 
which, on the day of an election, the party heelers on both 
sides have agreed to divide their campaign funds, and let the 
floaters cast their ballots uninfluenced. Such conduct is 
of course held dishonorable by those sensitive people who 
furnished the money. 

50. Relations of National and Local Politics. 

One of the reasons for the extraordinary hold of the ma- 
chine and the boss is the close relation between national 
and state politics. National issues are large, and attract the 
attention of the whole country : the tariff", currency, foreign 
relations, the army, the navy, interstate commerce, — these 
are subjects in which most intelligent persons are interested ; 
and the play of parties in Washington is on a grand scale. 
Although during the years from 1876 to 1896 the two great 
parties had no strongly contrasted policies, there was always 
a sharp division on minor questions. Party organs throughout 
the country naturally dwell upon these differences. Most men 
attach themselves to a party, and are interested in seeing it 
succeed, because such success means the advancement of a 
preferred policy, or at any rate the success of friends. 

In the states, however, the questions are local : whether 
there shall or shall not be heavy taxes on personal property. 



§5°] National and Local Politics. 107 

whether railroads shall or shall not be allowed to consolidate, 
whether prisons and asylums shall or shall not be placed 
under the control of a single executive board, — these are 
plainly questions not in any way dependent upon national 
policy ; and hence upon the face of it there is no reason why 
there should not be in every state two or more parties dividing 
on strictly state issues. Such parties existed in the colonies 
and in the early states. State questions arise and have to be 
settled ; there must be a division of opinion, but in practice, 
in every state in the Union, the parties correspond to the 
national parties ; and in elections people are concerned, not 
in choosing railroadites or anti-railroadites, not in choosing 
men who will vote for or against the sale of liquor on Sunday, 
but in choosing members of the Republican or Democratic or 
Prohibition party. 

The reason for this habit is plain : in order to carry national 
elections, the voters must be known, recorded by party man- 
agers, organized, and kept informed. Parties work in season 
and out to keep the voters from scattering and subdividing 
on state issues. Furthermore, those who are most successful 
in state politics pass into the arena of national politics : for 
instance, the governor aspires to become a senator of the 
United States, and must prove his claims by service, not only 
to the public, but to the party whose suffrages he desires. 

The same principle gets into city politics, where the relation 
with national affairs is even more remote. In cities the main 
issues are those of public works of various kinds, — streets, 
public libraries, gas works, bridges^ wharves, schools ; and 
there can be no Republican pavements, or Democratic bridges, 
or Prohibition schools. Yet in almost all cities the permanent 
political combinations are based on the national political or- 
ganizations : a man who wants to be mayor seldom is elected 
because he favors the things that the people want, but because 
he is accepted by the Republican or the Democratic organiza- 
tion as a good man ; and in local elections effort is made to 
choose, not so much men who will vote in accordance with 



io8 Party and Machine. [§ 50 

public good, but men who will act together for the ultimate 
good of their national party ; and it is in the cities that the 
machine and the boss have their largest work, precisely 
because the number of voters can be handled within very 
narrow territorial limits. The cities have also large numbers 
of public servants whose patronage is one of the most effective 
supports of the boss. It is quite conceivable that a boss might 
arise in a city on local issues, if they could be kept going long 
enough for him to perfect his organization ; but every power- 
ful boss aspires to control his state as well as his city, and for 
both he uses a perfected party organization. 

The evils of this connection have perhaps been exaggerated ; 
as a matter of fact, on a very large number of the measures 
brought before state legislatures, the members either exercise 
their discretion or vote as they are directed by their backers, 
without reference to parties. The harm is not that the states 
and cities try to conform their policy to that of the nation, 
but that the members of the state and local governments are 
nearly all nominated by party agencies ; and wherever the 
power of nomination has fallen into the hands of combinations 
and bosses, officials are not selected for their likelihood of 
public service, and hence do not command public confidence. 
In most cases, the voter must accept one or other of the 
candidates placed before him by the organizations. 

To meet this difficulty, various forms of non-partisan or 
citizens' movements have been devised. None of them have 
ever made much headway in state governments : the main 
check on excess of party spirit is that people who are suffi- 
ciently discontented with the conditions of the government 
unite with the opposition party in good common nominations. 
This is a process which the boss is always afraid of, and which 
he will often prevent by making concessions. In some cities 
for many years together there have been citizens' or people's 
tickets irrespective of parties, and usually successful. A 
notable example is the city of Cambridge, Massachusetts, in 
which for twenty-five years, from 1876 to 1900, no man was 



§ 5i] Reform of Party Methods. 109 

elected mayor on a party ticket. The more common method 
is a form of citizens' temporary ticket, combining the dis- 
satisfied elements in all parties for an exigency; such a 
combination carried the city of New York in 1901. 

51. Reform of Party Methods. 

So far in our history, there has never been a political evil for 
which alleviation and relief could not be found. The remedy 
for the party which has lost its conscience and continues with- 
out any purpose is to found a party upon vital issues. Thus 
the Whig party disappeared from 1852 to i860, and the 
Republican party took its place. The remedy for the con- 
ditions of the nomination system is not so easily brought about. 
The statutes so far passed for regulation of primaries by law 
have always proved inadequate, partly because of the inge- 
nuity of politicians to find legal ways to get round the intent 
of the laws ; and, further, because in such a system some 
state authority in the last resort must decide which party or 
which caucus is regular and therefore legal, and thus the state 
assumes the final decision in the internal affairs of a political 
organization. 

A remedy for over-organization is the so-called " Crawford 
County," or direct nomination, plan. Some weeks before 
election day, polls are open for the members of each party, 
and they express their preference for candidates of their own 
party. This system has been adopted in Minnesota ; attempts 
have been, made to introduce it into Wisconsin ; and as an 
optional measure, or one applied to special locahties, it is in 
use in Pennsylvania, Ohio, Mississippi, Oregon, and other 
states. Of course it requires careful legislation to prevent the 
voters of the other party from coming in and directing the 
nominations of their opponents ; the advantage is that it takes 
nominations out of the hands of "the organization." 

In this system, of popular nomination the real difficulty is, 
however, only shoved back ; because in the end that man is 



iio Party and Machine. [§51 

most likely to get a majority on a nominating ballot, who is 
known to have a great many friends ; or, what comes to the 
same thing, has the support of men who control large numbers 
of votes. It is doubtful, therefore, whether the result will not 
simply be the pre-designation of men as the favorites of the 
organization. Still, the system does put an immediate and 
wholesome check upon the designation of obviously unfit or 
unpopular men ; and if a man is really popular in his party, but 
has not the favor of the magnates, he may still secure a nom- 
inating majority. 

This method is intended to supplement not only the caucus 
but the convention, especially the cut-and-dried convention ; 
but in making up a convention ticket an effort is always made 
to secure representatives from various wings and geographical 
sections of the party, and from various elements of society ; 
therefore it is doubtful whether a ticket indicated by the 
nominating-election system would poll as many votes in a 
state as one selected in the usual way; and in close states 
voters will always be dissatisfied if they steadily lose elections. 
Nor is this method of much avail for independent or third- 
party candidates, since only regular adherents to a party can 
be permitted to take part in the preliminary election of their 
party. In city politics, the most effective elective reform is 
brought about by citizens' organizations. Societies are often 
effective in following up and exposing neglect or corruption 
among public officials ; such are the Watch and Ward Societies, 
the various civic leagues and municipal leagues, most of which 
take no direct part in nominating candidates. 

Citizens' organizations for making nominations are effective 
just so far as they imitate other political parties by themselves 
forming permanent organizations. In the city of Cambridge, 
for instance, there has been for thirteen years an association 
called Library Hall, which elects its own members. Its function 
has been to consider the nominations by other people, and to 
select out of all the names thus brought before it the candi- 



§ 5i] Reform of Party Methods. 1 1 1 

dates it thinks most worthy of public support. The association 
thus avoids the charge commonly made against such organiza- 
tions, that it simply wants to substitute its own men for some- 
body else's men. Library Hall also publishes a useful account 
of the attention to public business by the members of the city 
legislature, such as the number of meetings attended, and 
votes upon interesting public questions ; that is, it attempts to 
place at the service of the voter a careful brief account of each 
candidate, of his qualifications for the work, and of his public 
service if he has previously been in office. 

Another method of reform is by taking advantage of public 
dissatisfaction on local issues, to work out an organization 
which may compete in making up a ticket. Such a movement 
must have a committee and campaign fund ; it must employ 
men to canvass the voters and to keep watch upon them at 
the polls ; it must provide speakers and places for them to 
speak. In the local campaigns in New York in 1897 and 1901 
such an organization initiated the method of speaking from 
wagons, which can be drawn from place to place, requiring 
no expense for halls, and bringing political discussion home 
to the voter. 

There is, however, but one ultimate relief from extreme 
party organization, and that is for a sufficient number of party 
voters to rebel when they think their organization is going 
against the public interest. This involves frequently a great 
sacrifice ; for a man having a genuine and rightful ambition to 
serve his fellows in public life knows that, if he breaks with 
" the organization," he is likely to be marked for life. Yet 
there is nothing so much admired by the American people 
as political courage ; if the old organization is destroyed, this 
power to boycott a man disappears, and there have been plenty 
of cases where by sheer force of character, by personal popu- 
larity, by representing a great principle, men have compelled 
unwilling organizations to accept them as candidates, and to 
throw influence in favor of their election. In all cases a good 



112 Party and Machine. [§51 

citizen may recall the organization to its purpose by voting for 
the opposition candidate in whom he has more confidence ; or, 
if he cannot make up his mind to forsake his lifelong party, 
by simply staying at home in sufficient numbers, he may 
administer such a rebuke as will never be forgotten. 



Part III. 

State Governments in Action. 



CHAPTER VI. 

THE STATES AND THE UNION. 

52. References. 

Bibliography: Channing and Hart, Guide (1896), §§ 142, 143, 155, 
156, 159, 165, 175, 183, 205; A. B. Hart, Manual (1908), §§ 105, 106, 149, 
156, 160, 289; E. McClain, Constitutio7ial Law (1905), §§ 172, 177. 

Colonial Precedents : J. 8. Landon, Constitutional History (rev. 
ed., 1900), chs. i-iv; H. L. Osgood, The American Colonies in the Seven- 
teenth Century (3 vols., 1906, 1907) ; J. Schouler, Constitutioftal Studies 
(1897), part i; C. Borgeaud, Rise of Modern Democracy {1894), part ii ; 
J. Story, Commentaries (1873, 1891), §§ 159-178; G. T. Curtis, Constitu- 
tional History (1889, 1896), I, chs. i-iv; R. Frothingham, Rise of the 
Republic (1872), chs. i-v, viii-x ; L. G. Tyler, England in America {Am. 
Natio7i, 1904), chs. v, xii, xv, xviii; C. M. Andrews, Colonial Self- Govern- 
ment (Am. N'ation, V, 1904), chs. ii-xi; E. B. Greene, Provincial America 
[Am, Nation, VI), chs. i-v. — Sources : A. B. Hart, CoJitemporaries (1897- 
1901), II, §§ 45-74; A. B. Hart, Source Book (1900), §§ 48-51; H. 
Miinsterberg, Americans (1905), ch. vi. 

Principles of State Government : S. E. Baldwin, Modern Politi- 
cal Institutions (1898), chs. iii, iv, xi ; J. Bryce, American Commonwealth 
(ed. 1901), I, chs. xxxvi-xlvi, App. p. 711 ; J- A. Woodburn, Am. Repub- 
lic (1904), ch. vii; J. A. Smith, Spirit of Am. Government (1907), ch. ix ; 
T. M. Cooley, Constitutional Limitations (6th ed., 1890) ; T. M. Cooley, 
Constitutional Law (1898), chs. x, xi ; F. J. Stimson, .^w. Statute Law 
(1886), part i; L. B. Evans, editor. Handbooks of American Government 
(monographs on individual states) ; J. F. Jameson, Introduction to the 
Study of the History of the States (1886); H. von Hoist, Constitutional 
8 113 



114 States and Union. [§ 53 

Law (18S7), §§ 79-90; H. Hitchcock, American State Constitutions 
(1887) ; F. J. Goodnow, Administrative Law (1905), 1 54-160. 

Federal Relations: E. McClain, Constitutional Law, §§ 173-176; 
W. W. Willoughby, Constitutional System (1904), chs. iv-x ; B. A. Hins- 
dale, American Government (rev. ed., 1895), chs. xl-xlii, xlix; W. A. 
Dunning, Essays on the Civil War and Reconstruction {1898), 63-135, 
304-352 ; D. F. Houston, Nullification in South Carolina (1896) ; J. Bryce, 
Am. Commonwealth (ed. 1901), I, chs. ii, xxviii, xxxvi, xliv-xlvi ; J. 
Schouler, Constitutional Studies (1897), part ii, ch. x; J. Ordronaux, 
Constitutional Legislation (1891), ch. iii ; J. R. Tucker, Constitution (1899), 
I, chs. V, vii, II, ch. xiv ; J. C. Hard, Theory of our National Existence 
(1881) ; G. H. Alden, Forming atid Admittiftg New States (Am. Acad. 
Pol. Sci., Annals, XVIII, 469-479, 1901) ; J. W. Burgess, Reconstruction 
and the Cottstitution (1902) ; G. S. Boutwell, Constitution (1895), chs. 
xxix-xxxi, xliii, xlv, xlvi, xlix, Ix ; R. C. Hard, Habeas Corpus (1876), 
Book III; J. S. Landon Constitutional Hist. (1900), 250-261; W. A. 
Dunning, Reconst7-uction {Am. A^ation, XXII, 1907), chs. i-vii, xi, xvi. 

53. Variety and Unity of State Organization. 

Historically and practically the states are the foundation of 
government within the United States. President Lincoln truly 
said in 186 1 : " The states have their status in the Union, and 
they have no other legal status," yet state organization pre- 
ceded national organization, and to this day underlies it. If 
all the states of the Union should cease to work, the national 
government would not, under the constitution, control a suffi- 
cient part of the domain of government to maintain itself. 

The cardinal principle of the present Union is that, except in 
matters distinctly regulated by the federal constitution, each 
state is free to govern itself. Hence great variety in the form 
and the functions of the state governments : for instance, the 
Massachusetts legislature sits nearly six months out of every year, 
and every one of the fifteen hundred bills introduced receives 
some kind of consideration ; the California legislature loses its 
salary if it sits more than sixty days ; while the Alabama 
legislature meets only once in four years ; judges in Montana 
are elected for terms of six years ; judges in New Hampshire 
are appointed for hfe ; by the laws of New Jersey a money- 
lender cannot collect more than 6 per cent interest ; the laws 
of Idaho allow 1 2 per cent. 



§ S3l State Organization. 1 1 5 

Such differences are not all accidental ; some of them go 
back for centuries : of the present forty-five states eighteen 
formed parts of English colonies before the Revolution, and 
show distinct traces of colonial tradition in their governments ; 
another group of states, from Louisiana to California, bears the 
impress of former Spanish and French law. • Other commu- 
nities, such as Arkansas and Michigan, have been founded by 
those settlers who first came in and brought with them familiar 
law from the old states. 

Local conditions also account for and require a great variety 
of legislation : lumber states, like Maine or Wisconsin or Wash- 
ington, have special laws governing forests ; stock-raising states, 
like Colorado and Texas, legislate on wire fences and branding 
cattle ; states with large areas of waterless lands, like Nebraska 
and Utah, provide for irrigation ; communities like New Jersey, 
with hundreds of thousands of foreign immigrants engaged in 
manufactures, need different legislation from a community like 
Vermont, with a rural American population. 

On the other hand, throughout the Union the state govern- 
ments are very much alike, and legislation rests more on a com- 
mon basis than appears on the surface. All the governments 
have three departments, each intended to act independently of 
the other two. In all, the legislature, of two houses, is the 
repository of governing power not otherwise granted or ex- 
pressly withheld ; its legislative work is supplemented by the 
traditions of English common law. Most of the states elect 
the chief financial and other administrative and executive offi- 
cers. All have a series of courts, culminating in a single 
supreme court. In evfery state large areas of public power 
are transferred by the legislatures to cities and locahties. 

The legislation of the states is freely borrowed one from 
another ; and the courts quote and follow decisions of their 
neighbors. Nevertheless, great confusion comes from the 
variety of criminal and civil legislation : for instance, marriage 
and divorce laws are such that a man may have two legal wives, 



ii6 States and Union. [§54 

each entitled at his death to his property in the state in which 
she hves ; the descent of property is also different. The ad- 
vantage of the variety of state legislation is that the people of 
each state establish the system and make the laws which they 
think best adapted for themselves, and therefore the easiest to 
execute. 

In size and importance the states differ widely : the largest, 
Texas, has an area of 265,780 square miles ; the smallest, Rhode 
Island, only 1,250 square miles ; the most populous state, New 
York, has 7,300,000 people ; the least populous, Nevada, has 
42,000 inhabitants ; the Massachusetts population is 350 to a 
square mile ; in Wyoming it is i to a square mile. Texas is 
larger than European France ; New York has more people than 
Belgium and Holland together ; and several other states are 
large and populous enough to be a great country in themselves. 
Many of the states of the Union are made up of different and 
sometimes hostile sections : Illinois is divided into a wheat belt, 
a corn belt, and the city of Chicago. In such states few people 
are widely known throughout the state, and it is therefore diffi- 
cult for voters to judge of the quahty of candidates. 

54. Admission into the Union. 

The forty-six states have formed their relation with the 
Union by five methods : — 

(i) The thirteen original states joined in the Revolutionary 
War and the Declaration of Independence, and ratified the 
Articles of Confederation and the Federal Constitution. 

(2) Out of those thirteen states, five others have been formed 
by separation : Vermont out of New York in 1791 ; Kentucky 
out of Virginia in 1792 ; Tennessee out of North Carolina in 
1796 • Maine out of Massachusetts in 1820 ; West Virginia out 
of Virginia in 1862. It was expressly provided in 1845 that 
Texas might be cut up into not more than five states ; but that 
commonwealth has never shown any desire to break itself up. 
The only probable separation in future is that of the two 
peninsulas of Michigan. 



§54] Admission. 117 

(3) The only case of incorporation of an independent nation 
as a state is the admission of the independent republic of 
Texas, in December, 1845. 

(4) Another abnormal method was the creation of the state 
of California out of a region incorporated by treaty in 1848, 
which had never gone through the territorial status : the people 
were determined to have a state government, and Congress was 
obliged to acquiesce. 

(5) Twenty-six states in the Union have been formed out 
of pre-existing organized territories by act of Congress, under 
the clause of the constitution: "New states maybe admitted 
by the Congress into this Union ; but no new state shall be 
formed or erected within the jurisdiction of any other state ; 
nor any state be formed by the junction of two or more states, 
or parts of states, without the consent of the legislatures of the 
states concerned as well as of the Congress." 

In addition, eleven states which, from 1861 to 1865, withdrew 
from participation in the federal government, were conquered 
and practically treated as disorganized territories ; eventually, 
they all accepted the terms proposed by Congress, and in 1870 
the last of them was again recognized as a full and equal mem- 
ber of the Union. 

The usual method of admitting a territory is first to pass an 
enabling act, authorizing the people to form a constitution, to 
submit it to the voters of the territory for their approval, and 
then to submit it to Congress. Congress has several times 
delayed the admission of a state because it disliked the proposed 
constitution, particularly in the case of Missouri in 1820-21, of 
Kansas in 1856-58, and of Utah in 1890-95. 

The Ordinances of 1784 and 1787 both promised that 
Western states should be admitted " on an equal footing with 
the original states " ; and the same principle of equality has 
held for later annexations : each state has the same number 
of senators, the same constitutional privileges, and the same 
federal obligations. . Nevertheless, about twenty-five states since 



ii8 States and Union. [§55 

r8o2 have entered the Union under specific conditions : in 
1802 Ohio had to make an ordinance, irrepealable without the 
consent of the United States, by which the new state was not 
to tax lands sold by Congress during five years after sale ; in 
181 2 the Louisiana Act laid down the condition that the Mis- 
sissippi River was always to be free of toll ; in 1820 the House 
of Representatives proposed to prohibit slavery in the future 
state of Missouri, and although this clause was finally left out, 
a clause was inserted to the effect that the state should not 
interfere with the rights of citizens of other states who might 
come into Missouri ; in 1864 Nevada was required to agree 
that slavery should never exist in the new state. The recon- 
structed states all accepted conditions with regard to negro 
suffrage and public debt. Plainly, the states are not equal, 
even though most of these conditions have been unimportant, 
like those as to the sale of pubhc lands ; or temporary, like 
the provisions as to negro suffrage. 

When a territory is admitted as a state, all its pre-existing 
laws, unless inapplicable or contrary to the federal constitution, 
remain in force until altered by the new state. Hence in 
Louisiana the old French civil law has remained in effect even 
after statehood ; and in California and Utah there is still a 
body of Spanish law. 

55. Privileges in the Union. 

States as members of the federal Union have large privileges, 
the first of which is representation in the Senate and the House ; 
and they all participate in the election of president. The con- 
stitution of the United States especially guarantees to each of 
the states a republican form of government. This clause was 
inserted partly in consequence of the Shays Rebellion in 1787, 
and was intended to authorize the federal government to aid 
and support a state government if attacked by insurgents. 
What does " repubhcan government " mean ? That no state 
may have a formal oligarchic or monarchic system. But this 



§ 55] Privileges. 1 19 

clause does not apply to bosses who get actual control of a state 
government, since their rule is not hereditary, and since they 
keep up the forms of election. At least fifteen times rival state 
governments have been set up in the same state ; in such cases 
some department of the federal government, usually the presi- 
dent, must decide which is the legal body and therefore entitled 
to the guaranty. Repeatedly during the Reconstruction period, 
federal troops were called out to protect or disperse one of 
these rival governments. Another clause in the constitution 
authorizes the president to send militia or federal troops at the 
call of a state government which is in distress ; and such calls 
have repeatedly been made. 

The next right of a state is territorial integrity : it cannot be 
divided without its own consent. It is also to be protected 
from invasion by a foreign enemy ; hence it is the duty of the 
United States to represent the states in boundary controversies : 
thus Maine, from 1820 to 1842, insisted that the United States 
should make no compromise of territory disputed with Great 
Britain on its northern boundary. 

The states have also some important financial privileges. 
The United States has twice distributed considerable sums of 
money among them: in 1837 about ^27,000,000; in 1891 
about $20,000,000 ; and in 1790 it assumed about $18,000,000 
of state indebtedness. These are small sums in comparison 
with the amounts given by the United States through the public 
lands : from first to last the United States has transferred to 
the states about 162,000,000 acres of public land for various 
purposes, land which, if carefully nourished and sold at its 
market value, would probably have produced $1,000,000,000. 
Since 1887 the United States has also made annual appropria- 
tions for the support of state experiment stations, and since 
1890 for that of agricultural colleges, the whole amounting to 
about $2,000,000 a year. 



1 20 States and Union. [§ 56 



56. Interstate Obligations. 

The first group of state duties are those which they owe to 
one another as sisters and equals. The constitution specifies 
that " full faith and credit shall be given in each state to the 
public acts, records, and judicial proceedings of every other 
state." This means, not that state authorities are bound to 
accept the acts of a neighbor as binding across the border, 
but simply that, if a decision has been made in Indiana, the 
courts of Ilhnois are bound to accept the fact of the decision 
from an authenticated copy of the record ; but the jurisdiction 
of the Indiana court may still be questioned. The purpose is 
that, when a matter has been examined and the facts decided 
by a competent tribunal, it shall not be necessary to retry it in 
every other state. 

Nevertheless, two practical difficulties constantly arise : in 
the first place, the same man or estate or corporation may 
have property in several states, in each of which separate suits 
must be brought, perhaps on different grounds, in order to 
establish the title ; in the second place, no court is bound to 
execute the law of another state in the Union. The United 
States courts often have jurisdiction in cases of complicated 
property, especially those involving railroad and other cor- 
porations doing business in several states. 

Another obligation is the return of fugitives. While slavery 
lasted, the principle included fugitive slaves ; and by two suc- 
cessive acts, of 1793 and 1850, the United States government 
prescribed a method of capture independent of the state govern- 
ments. The captures were unpopular in many Northern states, 
and led to forcible resistance to the authority of the United 
States government, and to the so-called " Personal Liberty 
Bills" (1840-1861), which impeded the operation of the na- 
tional statute. On adoption of the Thirteenth Amendment, 
the fugitive-slave clause of the constitution became obsolete. 

Another obligation is the extradition of fugitive criminals ; 



§56] Interstate Obligations, 121 

but here the states must act. The usual method, in case a 
criminal takes refuge in another state, is to have him arrested 
and held for a few days, until the governor of the state from 
which he came may send a direct " requisition " to the gov- 
ernor of the state in which he is found, to authorize his return ; 
when such a document is granted, the police authorities allow 
the man. to be carried beyond the state boundary. Requisi- 
tions are often refused, on the ground that the crime charged 
is unknown to the statutes of the refuge state, and sometimes 
because of personal hostility between governors. The system 
is one necessary for the protection of the community ; but the 
Supreme Court has decided that there is no way to compel a 
governor to do his duty, if he is indisposed. 

Another clause of the constitution provides that " the citizens 
of each state shall be entitled to all privileges and immunities 
of citizens in the several states." The purpose is to prevent 
states from interfering with citizens of other states who want to 
move about or to settle within their hmits, whether by laying 
special taxes on them, or by excluding them from carrying on 
a lawful calling, or by withdrawing the right to use the courts 
of the state. Any citizen of the United States has this right 
to move about the whole Union, and to dwell in every state 
on the same terms as its own citizens. 

Another obligation (not expressed in the constitution) is 
comity, — that is, the duty of the states to act toward their 
sister states with courtesy, consideration, and good humor. 
For instance, inveigling a person charged with crime over the 
border of a state and then arresting him, is not exactly a crime, 
but it is contrary to pleasant relations between neighbors. 

How far is one state obliged to take notice of the laws of 
another state? This is a branch of jurisprudence known in 
legal literature as "conflict of laws," or as "private interna- 
tional law.'"' Our courts often take note of laws or decisions in 
other states or in foreign countries. For instance, suppose a 
Frenchman dies in New York leaving Parisian real estate to his 



122 States and Union. [§57 

son in Georgia ; the Georgia courts cannot avoid taking note 
of the French laws of descent, and may also apply the New 
York law. 

57. Duties in the Union, and State Sovereignty. 

For the prosperity of the Union, the states must carefully 
observe their obligations to the Union. First of all, they are 
bound to keep up the forms of the United States government, 
— to carry out the federal laws by erecting districts for mem- 
bers of Congress and by electing senators ; and all state officers, 
executive, judicial, and members of state legislatures, are con- 
stitutionally bound to take oath to support the constitution of 
the United States and to maintain a republican government. 

The states are under obligation not to contravene the federal 
constitution by clauses in their state constitutions ; yet from 
1865, when the federal constitution first prohibited slavery, 
till the constitutional revision of 1890, the Kentucky constitu- 
tion retained a clause to the effect that " the right of the owner 
of a slave to such slave, and its increase, is the same, and as 
inviolable as the right of the owner of any property whatever " ; 
but it was simply a dead letter. The states are also bound not 
to pass laws which in any way interfere with the prerogatives 
of the federal government : they must not tax federal prop- 
erty, directly or indirectly ; they may not even directly tax 
federal banks or the incomes of federal officials. When this 
principle is disregarded, it often leads to conflicts of author- 
ity between state and federal officers, and even between state 
and federal courts, as in Ohio in 1824. Usually a legal 
line between the two sets of authorities is drawn by a test 
case decided by the federal Supreme Court. 

The states are formally bound not to enter into compacts with 
one another, or with a foreign power, without the consent of 
Congress, or into any treaty, alliance, or confederation. This 
article is intended to prevent the formation of separate internal 
leagues and agreements, and applies to such organizations as 
the Confederate States of America, formed in 1861. 



§57] State Sovereignty. 123 

The most important duty of the state is to remain in the 
Union. Long before the Civil War, the so-called " doctrine 
of state rights " was worked out to its logical consequence, — 
that the sovereign rights of the state have never been surren- 
dered, and may legally be protected by forcible withdrawal from 
the Union. The basis of state rights and secession is the same, 
— namely, the assumption that the states are and always have 
been sovereign, independent, and free to dissolve a voluntary 
union. 

To settle a question of that nature on theoretical ground is 
difficult ; but in practice no state in the Union has ever been 
sovereign, except Texas. No one of the thirteen original states 
ever made a treaty for itself, or a foreign war on its own ac- 
count ; throughout the Revolution all the states acknowledged 
a responsibility for the common national funded debt and paper 
money ; they all united in making a national army and navy, 
and in appointing national officers to command ; during the 
weak Confederation the states admitted the sole authority of 
Congress to negotiate treaties, to coin money, and to do many 
other important acts. Even during the secession era of 1861- 
1865, ho one of the seceding states ever really acted independ- 
ently : at the earliest moment they went into a confederation, 
which directed their joint affairs during the war. In the opinion 
of the Supreme Court of the United States in passing on the 
Reconstruction acts, no one of the states was ever outside the 
territory or jurisdiction of the federal government after admis- 
sion within the Union. Chief Justice Chase called it " an 
indestructible union, composed of indestructible states." 

Practically, the result of the Civil War was to make it plain 
that a large proportion of the American people disbelieved the 
doctrine of state sovereignty, and that any body of states which 
in the future may attempt to assert that doctrine by actual 
secession will have to fight the rest of the states. Henceforth 
nobody can for a moment suppose that there can be such a 
thing as peaceful secession. Yet the states do retain a large 



I 24 States and Union. [§ 58 

number of absolute and undoubted rights. Consolidation of 
the Union would be almost as great a misfortune as disunion. 

58. Functions of State Government. 

Although by tradition and by the Tenth Amendment to the 
constitution the states possess the powers not delegated to the 
federal government, the total body of such powers is in action 
much restricted. The states are by the federal constitution 
directly prohibited from the exercise of some specified powers : 
thus no state can coin money, or grant titles of nobility ; no 
state can establish slavery, or deprive a citizen of the United 
States of citizenship, or deny the suffrage to citizens of the 
United States on account of race, color, or previous condition 
of servitude. 

Other powers are indirectly prohibited : for instance, no 
state can exercise jurisdiction over the District of Colum- 
bia, because the United States has exclusive jurisdiction 
there. 

There is a small field in which neither the nation nor the 
state can legislate : neither power may give preference to the 
ports of one state over another, or pass a bill of attainder or an 
ex post facto law, or deprive a person of life, liberty, or prop- 
erty without due process of law, or abridge the constitutionally- 
protected privileges or immunities of citizens. 

The area of excluded powers is very much enlarged by the 
particular provisions of state constitutions, especially by the bills 
of rights and the restrictions on legislation ; for example, many 
constitutions withhold the right to grant special charters to cor- 
porations, or to give public aid to railroads. The local govern- 
ments are still more tied up by withdrawals of powers nominally 
within their field. The result is that in America the possible 
functions of government are smaller than those exercisable by 
European nations, and smaller than they were a century ago. 
Nevertheless, there is still an immense field for legislation : 
thousands of new statutes are adopted every year, and thou- 



§ S8] Functions. 125 

sands of court decisions expound constitutions, statutes, and 
principles of government. 

The first group of fundamental state powers is concerned 
vv-ith individual rights : the states may confer privileges on 
citizens and aliens, including the suffrage ; and they continually 
regulate the ordinary relations of man with man, and of property 
(such as the right to acquire, to sell, to transmit by gift or will or 
by inheritance), as well as the relations of officials with private 
individuals. Included in this power is the enormously impor- 
tant right to create corporations, which have many of the privi- 
leges of individuals, such as the right to hold property, to sue, 
and to be sued. 

The next group of powers is territorial : almost the whole 
domain of private landholding and transfer comes under the 
state governments; the state owns public streets and roads, 
parks, and public buildings ; the state also enjoys and may 
delegate the great right of eminent domain, — the appropriation 
of private real estate for public purposes on payment of a reason- 
able compensation. The state makes and alters the network of 
territorial subdivisions, — counties, townships, school districts, 
towns, cities, boroughs, wards, voting precincts, judicial districts, 
and all the rest. 

The financial powers of the state are large. The common- 
wealths and their creatures, the local governments, raise in 
taxes about one and one half times as much per capita as is 
raised by the federal government ; and they expend all this 
and more, for they are constantly incurring debt. 

The commercial powers of the states are many fold greater 
than those of the nation, because they control almost all private 
business not interstate, — manufactures and industries of every 
kind, and transportation within the state. Since the volume 
of business which begins and ends within a state is very much 
greater than that which crosses even one state boundary, the 
larger part of American commerce is directly subject only to 
state law. 



126 States and Union. [§58 

The states have the important military right to employ organ- 
ized force to keep order, if necessary. The police of the cities 
are really state ofificers ; the militia called out to execute the 
laws are under state command. Public health and morals are 
largely controlled by the states : epidemic diseases, dangerous 
pursuits, the question of the sale of intoxicating liquors, these 
are all practically out of the federal realm. Finally, to the state 
falls also almost entire control over the two great agencies of 
civilization, religion and education. 



CHAPTER VII. 

STATE LEGISLATURES. 

59. References. 

Bibliography: A. B. Hart, Manual (1908), §§ 105, 106, 144, 161, 207, 
243, 289; E. McClain, Constitutional Law, § 44. See also references in 
ch. vi above. 

State Legislatures in General: E. McClain, CotistitutionUl Law 
(1905), §§ 45, 46; P. S. Reinsch, Legislative Methods (1907), chs. iv-ix; 
T. Roosevelt, American Ideals (1897), No. 5 ; S. N. Patten, Decay of 
State and Local Governments (Am. Acad. Pol. Sci., Annals, I, 26-42, 
1890); J. Schouler, Constitutional Sttidies (1897), part iii, ch. v ; C. B. 
Elliott, Legislatures and the Courts {Pol. Sci. Quar., V, 224-258, 1890); 
J. Bryce, Ain. Commonwealth (ed. 1901), I, chs. xl, xliv, xlv; L. B. Evans, 
editor, Handbooks of Am. Government (monographs on individual states) ; 
G. H. Haynes, Representation in New England Legislatures (Am. Acad. 
Pol. Sci., Annals, VI, 254-267, 1895) ; M. Storey, Am. Legislature (Am. 
Bar Assoc, Reports, 1894, pp. 245-272) ; H. E. Deming, Legislature in 
State and City, I'jg'j-iSgi (Nat. Conf. for Good City Gov., Proceedings, 
1897, pp. 89-102). 

Legislation: E. McClain, Constitutional Law (1905), § 46; P. S. 
Reinsch, Legislative Methods (1907), ch. x; J. Ordronaux, Constitutional 
Legislation (1891), ch. x; J. A. Fairlie, Municipal Administration (1901), 
ch. xvii; F. J. Stimson, Uniform State Legislation (Am. Acad. Pol. Sci., 
Annals, V, 829-864, 1895); S. Sterne, J. W. Gary, W. L. Snyder, in Am. 
Bar Association, Reports, 1884, pp. 275-301, 1892, pp. 245-311; D. B. 
Eaton, Government of Municipalities (1899), ch. x. — Sources: New- 
York State Library, Summary of Legislation, Review of Legislation 
(annual volumes). The address of the president of the Am. Bar Asso- 
ciation each year usually includes a review of the changes in statute law. 

60. Members of the Legislature. 

Since under the theory of American government the states 

retain all the powers not granted to the federal government, 

and since at the beginning the state legislature was the chief 

power in the state, it is a recognized principle that the legisla- 

127 



128 State Legislatures. [§ 60 

ture may perform any act incident to government which is 
not by the federal or state constitution withheld or otherwise 
assigned. Hence it is the most powerful part of every state 
government. 

In every state the members of the legislature are chosen by 
popular suffrage. During colonial times and for many years 
later, many states had special qualifications for legislators : in 
two states, Maryland and Tennessee, no minister might be a 
member. In most states now, no holder of an executive office, 
state or national, may sit in the legislature ; in Indiana, even a 
bank officer is excluded from it. Property qualifications for 
office have now almost entirely disappeared ; and it is a rule 
showing very few exceptions that a person eligible to vote is 
also eligible to hold office. 

Everywhere throughout the United States it is either a written 
or an unwritten law that a member of the legislature must live 
in the district from which he is elected ; and the rule is practi- 
cally self-operating, for it is next to impossible to elect a man 
who is not a resident among the voters who choose him. With 
three exceptions, legislators are elected from districts intended 
to be about equal in population : in Connecticut, each town 
or city has one or two members of the lower house ; in Rhode 
Island each town or city has one senator; in New Hampshire, 
every town of 600 inhabitants has a representative, and 
an additional one for each increase of 1,200 inhabitants, but 
towns of smaller population have representation a proportionate 
part of the time. In many states, the counties are the unit for 
districting for members of the legislature. The colonial idea of 
representation by communities has almost disappeared ; for to 
a modern mind it seems inequitable that a village of 75 voters 
in Connecticut should have half as much influence in the legisla- 
ture as a city of 15,000 voters. 

The term of legislators varies from one to four years, the 
usual term being two years ; but the continuance is very short, 
especially in the lower house : people do not recognize the 



§ 6i] Organization. 129 

advantage to a district of being represented by a man who has 
had long experience. In a recent New England legislature of 
106, 100 had not sat in the previous legislature. The chance 
is about even that a member, no matter how serviceable, will 
not get a second term ; it is thought wonderful in Massachusetts 
that a particular member should have been eight years elected 
to the lower house. There is of course some advantage to the 
community in a large number of ex-members of the legisla- 
ture, acquainted with the methods of public business ; and the 
legislatures are a kind of school for ambitious men, who hope 
to pass from the lower to the upper house, and thence if possi- 
ble to other state offices or to Congress. 

In quality, the state legislatures fairly reflect the average man 
in the community, except that the inexperience of new mem- 
bers makes it easier for party leaders to manipulate their votes. 
As the work of the legislatures is tedious and often long, and 
the pay small, it is difificult to attract professional men who 
have large incomes. Wherever there is a highly-organized 
boss system, some members of the legislature come in really as 
representatives of particular politicians or of business men not 
known in politics : Theodore Roosevelt found in the New York 
legislature in 1883 one man whose vote was controlled by a 
criminal. The difficulty with legislators who are under obliga- 
tions to party chieftains is that they must follow the will of their 
leaders rather than the will of their own constituents. Never- 
theless, members of legislatures are in general very sensitive to 
public opinion, and most of them represent and express the 
wishes of the people who send them. 

61. Organization of the Legislature. 

The state legislatures differ in numbers: Delaware has 1 7 
senators ; Indiana has 50 ; the Delaware House has but 34 
members; the New Hampshire House has 397. The average 
legislature, taking both houses together, has about 100 to 150 
members. In all the states and territories, legislators are paid, 

9 



130 State Legislatures. [§ 61 

the largest annual amount being ^1,500 in New York, the 
smallest annual salary $150 in Maine. Many states prefer 
the per diem system, ranging from eight dollars a day in 
California to three dollars a day in several states ; in addition 
it is common to allow mileage, commonly at a rate much 
larger than actual expenses. In almost all cases, however, 
the salary and fees are too small to be an object in them- 
selves : most aspirants for the legislature seek it for reputation 
or power or opportunity. 

The official title of the legislative branch is commonly 
" legislature " or " general assembly"; in Massachusetts and 
New Hampshire it is the colonial title " general court." The 
upper of the two bodies is invariably called the Senate ; the 
lower house, sometimes the House of Delegates, more often 
the House of Representatives. Although three of the states 
of the Union — Pennsylvania, Georgia, and Vermont — at one 
time had legislatures of a single house, there are now two 
houses in every state. The two bodies represent different 
gatherings of constituents, and often exhibit permanent differ- 
ences of temperament ; and the bicameral system gives time for 
a thorough discussion of measures. Although the upper house 
in many foreign countries, as in England, France, and Canada, 
has become weaker than the lower, in the state legislatures^ the 
two houses have about equal power, though the Senate, as the 
smaller, is more likely to do effective work. It frequently also 
has special functions, such as passing on appointments and 
sitting on impeachments. 

The legislature habitually sits at the state capitol, or state 
house, in which is also the governor's office, and frequently 
a chamber for the state Supreme Court. Each house always 
has its separate chamber for meeting ; and usually a flag ap- 
pears over each wing of the building when the legislature is in 
session. 

The internal organization of the houses is determined by the 
state constitution. The Senate has in some cases an elective 





9 a I rr b 







PROVIDENCE 



RHODE ISLAND 



STATE CAPITOLS 



§ 62] Process. i 3 i 

president, but more often the lieutenant-governor of the state 
sits, Uke the vice-president of the United States, as presiding 
officer ; every lower house has its elective speaker. The habits 
of Congress have so far reacted on the state legislatures as to 
bring about almost the same system of internal organization, — 
a speaker, a body of standing committees, and a conclave of 
party leaders, acting as a steering committee. The speaker 
directs who may or may not have the opportunity of addressing 
the House, decides on points of order, and is a party leader, 
brought into consultation on any question as to the attitude of 
his party on pending measures. 

Many cases of conflicting houses, or even of legislatures, have 
occurred. In 1849 two so-called " houses " were organized at 
the same time in the same room in Ohio, and continued their 
double sessions for several weeks. In 1873 the Kellogg and 
McEnery legislatures sat in two halls in New Orleans till the 
latter body was broken up by United States troops. 

62. Process of State Legislation. 

In two states that have annual elections, — Massachusetts 
and Rhode Island, — and in four others, — New Jersey, 
Georgia, New York, and South Carolina, — the legislature 
meets every year ; in the other states, only once in two years ; 
in Alabama, only once in four years. The governor may 
summon a special session if the business is not completed, 
or if new business arises-. Many of the constitutions limit 
the length of session to forty or sixty days ; and it is very 
common to cut ofif the per diem at the expiration of the 
specified time. The truth is that in many states people feel 
uneasy while the legislature is in session. 

During the session, the legislature commonly meets every 
week day, though in small states it is very common to adjourn 
over Saturday so that members may have two days at home ; 
and very often all the members have railroad passes, so that it 
is easy to come and go. As in Congress, each house has an 
elaborate system of rules, commonly reenacted from session 



132 State Legislatures. [§62 

to session with amendments, the prime object being to enable 
the presiding ofhcer to bring questions down to definite issues, 
and to enable the majority party to select the measures upon 
which it wishes to allow a vote. 

The rules are further intended to prevent surprise, and com- 
monly include provisions that bills must be submitted in writing, 
must be read and passed upon not less than three times, must 
not go through those three stages without the intervention of a 
day, must be reported on by an appropriate committee, and 
must be duly authenticated by the signature of the presiding 
officer of each house. 

In most legislatures which are not absolutely under the 
thumb of a boss, there is plenty of genuine debate, more than 
in the national House of Representatives. Questions which 
personally interest members and affect their constituents are 
always coming up, and party lines are not drawn with any 
strictness on general non-political questions. All the state 
legislatures have the system of previous question, under which 
debate may be, and frequently is, remorselessly cut down ; 
without some such arrangement, the houses would never be 
done with debating. 

In every legislature, the rules of procedure are such that, if 
they are observed, it is next to impossible to slip a bill through 
without affording an opportunity of knowing its character and 
giving honest opponents an opportunity of debate ; but the 
rules may be so manipulated as to prevent discussion. Dead- 
locks between the two houses of a state legislature are not 
uncommon, and sometimes last for several weeks. A fre- 
quent result of a deadlock over a bill is that it fails for lack 
of agreement ; but a common way out is the appointment 
of a committee of conference from the two houses, which 
recommends some form of compromise. 



§63] Influences. 133 

63. Influences on State Legislation. 

In the process of state legislation, the first question is that of 
initiative. While in some foreign countries bills must be intro- 
duced by the executive or by only one of the two houses, in 
the United States the initiative is not only in either house, but 
in any member of either house, and therefore in any constitu- 
ent or body of constituents who can induce a member to submit 
a bill. In fact, bills are often drawn beforehand by people who 
desire legislation. The governor has everywhere the right to 
recommend legislation in his annual messages, and doubtless 
sometimes he or his friends actually draw up bills for considera- 
tion. In all the legislatures, the final form is given to measures 
by the committees. 

The strongest influence, and the most effective in the long 
run, is public sentiment : if a question of taxation has been 
long discussed out of doors, the time comes when the legisla- 
ture is forced to act upon it ; a general railroad charter bill in 
which the whole community is interested will be pushed or held 
back, according as the public throughout the state is interested. 
The public press is one of the means of expressing this interest ; 
another, and perhaps a more effective, way is through private 
letters and telegrams, of which hundreds sometimes pour in 
on a single member. 

Bills of every kind run the gauntlet of the committees, and 
the greater part are remorselessly smothered in private con- 
claves. To be sure, committees frequently have public hear- 
ings, and in some states must hold them if desired ; but their 
minds are made up in private session, and in almost every state, 
unless a committee will make an affirmative report, no vote can 
be reached. Hence a man interested in the passage of a 
measure goes to members of the committee which has it in 
charge. In some cases a delinquent committee can be awak- 
ened by a demonstration like that of the nine car-loads of 
people from Amsterdam Avenue, New York, who a few years 



134 State Legislatures. [^63 

ago prevented the misuse of their street by going up to Albany 
to protest. In Massachusetts the committees are compelled 
to make a report either for or against a bill, and either house 
may, and frequently does, insert another measure for that pro- 
posed by the committee. 

The members of committees are appointed by the speaker or 
the president of the Senate, who thereby has more power over 
the course of legislation than any one else. It is hardly to be 
presumed that committees made up by the speaker will report 
measures of which he disapproves ; but, should they do so, the 
speaker will almost invariably interpret the rules of the House so 
as to prevent anything to which he is opposed from coming to a 
vote. This practice tends to legislative unity ; for upon one man 
is thrown the responsibility both of initiating measures through 
the committees and of reviewing them thereafter. The speaker 
of the House of a legislature is therefore, like the prime minis- 
ter of England, the centre of systematic legislation, working 
through and in harmony with the members of the majority ; 
and he frequently allows measures to pass to which he is 
personally opposed. 

In a few states there is behind the speaker the state boss, 
who controls the majority of each house, and hence the choice 
of the presiding officer. Sometimes the boss is governor j 
sometimes he acts in harmony with the governor ; sometimes 
he acts against the governor : in any case, no legislation will go 
through which he opposes ; and people who really desire to 
have a thing done, or to prevent it, are forced to appeal to 
him or to persons whom they suppose to have influence over 
him. 

Mr. Roosevelt found in the New York legislature, when an 
innocent measure was proposed to which presumably no objec- 
tion could be found, that certain members opposed it ; he then 
set to work to find out who their influencers were, and found 
that one was the creature of a federal official of the opposite 
party, and another of a corporation manager. When influence 



^ 6s] Influences. 135 

was brought to bear upon these owners, they gave explicit 
orders to support the bill, and their members instantly changed 
front. In most states and in most years, the greater number 
of members are free from such paralyzing influences ; but there 
are cases in which the majority of the legislature are simply 
played as counters by hidden men of power. 

How far the members of state legislatures are influenced by 
money is hard to know. One of the few advantages of the 
boss system is that it makes bribery of a member quite inef- 
fectual, since he dare not under any circumstances vote other- 
wise than as the boss directs. Mr. Roosevelt thought that about 
one third of the members of the legislature when he knew it 
were open to some kind of money consideration ; and there 
have been cases in other states where honest members have 
laid on the speaker's table great rolls of bills which had been 
offered them for their votes. Even when a member is open to 
corrupt influence, it is more likely to take the form, not of cash, 
but of a privilege, or of shares of stock, to be made more valuable 
by pending legislation. Hundreds of men pass through the 
legislature without meeting the slightest effort to influence their 
votes corruptly, because they are perfectly well known to be 
above any form of bribery. 

One of the most frequent influences on legislation is the proc- 
ess called " log-rolling," by which various members agree that 
they will vote for the others' measure or part of a measure. For 
instance, if insane asylums are to be constructed, members of 
different counties will agree to vote for a bill to distribute the 
new buildings among their counties, and thus a majority for 
the whole bill can be obtained. 

Another method of influencing legislation is to introduce so- 
called "strikes," — bills not intended to be passed, but to be 
bought or shaken off in some way : rich corporations are the 
unfailing objects of vexatious and unnecessary legislation, often 
carried along until some inducement is made to withdraw it. 
Where there is a legislative boss, he arranges those matters j and 



136 State Legislatures. [§64 

frequently, for a fixed contribution to the campaign fund, agrees 
that the corporations shall not be further annoyed. 

64. The Governor's Veto. 

In forty-three of the forty-five states the two houses do not 
make up the whole of the legislative power, inasmuch as the 
governor has a qualified veto. The only remaining exceptions 
are Rhode Island and North Carolina. This veto power is 
practically found among the functions of the governors in all 
the thirteen colonies except two. The colonial veto, however, 
was absolute, whereas in all the states but one the veto may be 
and frequently is overridden by the later action of the two 
houses. In seven states a majority of all the elected members 
is required on such second vote ; in two states, a three fifths 
majority, in all the other states, a larger majority, from two 
thirds up. 

Nevertheless, in order to be effective the governor's veto 
must be definitely expressed : in all the states a bill becomes an 
act if it lies in the hands of the governor without examination 
for periods ranging from three to ten days. When the legis- 
lature adjourns before the expiration of this time, in eight 
states the governor has a period of from ten to thirty days to 
examine bills and decide whether he will veto or sign them. 
An interesting provision, which obtains in about twenty states, 
is that the governor may select items out of an appropriation 
bill for his veto, permitting the rest of the bill to go into effect. 

The effect of the governor's power is not measured simply 
by the number of bills vetoed: the fact that the governor is 
opposed to a measure often causes it to be modified or with- 
drawn ; or a conference is held with the governor by those in- 
terested in the bill, and modifications are made to meet the 
objections which he puts forward. Veto messages usually call 
public attention to a measure ; and in many instances bills 
which have gone through by large majorizes are made so un- 
popular that on a second vote they have not even a majority, 



STATE OF WISCONSIN. 



7\ 



No. 98, A. 



January 23, 1901. — Introduced by Mr. STEVEIT3. Read first o.nd second times and referred 
to committee on Privileges and Elections. 



To abolish po)itical caucauses and conventions and provide for political nominations by di- 
rect vote. 



The people of the State of Wisconsin, represented in senate and assembly, 
do enact as follows t 

Seclion 1. All statutes pertaining to political caucuses and conventions for the nom- 

2 ination of all ofTicers provided for in this act are hereby repealed. 

Section 2. Hereafter, all candidates to be voted for by the people, except those for 

3 judicial, village, township or school district offices, or at special elections to fill vacan- 

3 cies, shall be nominated either at a t)rimary election, held in accordance with this act, 

4 or by petition in accordance with sub-division 3 of section 30, of the statutes of 1S08. 

Section 3. Primary elections shall be held at the regular polling place in each elec- 

2 tion precinct in this state, on the first Tuesday in September, 190i, and biennially 

3 thereafter, for the purpose of nominating candidates to be voted for at the next general 



A LEGISLATIVE BILL 



§65] Output. 137 

much less the necessary two thirds or three fifths. Upon the 
whole, the veto power is one of the most salutary parts of the 
system of state legislation ; for it may be applied to bills which 
have been smuggled through the two houses without a clear 
understanding of their intention, or it may be invoked by 
public opinion as the last opportunity to defeat an undesired 
measure. 

65. Output of State Legislation. 

In most state legislatures, distinction is made between public 
legislation and private bills — that is, bills which apply to only 
one or to a few persons, and which therefore are based on local 
or temporary considerations. Many state constitutions abso- 
lutely prohibit private legislation, or even legislation intended 
for a particular city : the Pennsylvania constitution, for instance, 
has thirty-two sections prohibiting the passage of local and pri- 
vate bills on various subjects. Some cases for relief to a single 
individual occur, — as, for instance, when a public officer is 
robbed of public funds ; but in general private bills do not 
interest the legislature, are not examined carefully on their 
merits, and are passed by a system of log-rolling. 

One of the great abuses of legislation is the granting of 
special charters to banks, railroads, and other corporations. 
Under a more enlightened system general statutes are passed 
with great detail, prescribing the form of all banking or rail- 
road corporations ; and in order to get a charter these general 
conditions must be fulfilled. 

Taking public and private bills together, the number is 
prodigious. In the year 1899, the forty-five states appear to 
have passed more than 5,000 statutes, besides many private 
bills ; the state of Massachusetts in the five years from 1891 to 
1895 put upon the statute-book 2,986 statutes ; New York, in 
the one year 1895, P^^ssed 1,045 statutes. The result is that 
within a state the law is constantly changing so rapidly that 
neither public officers nor lawyers can keep track of it. The 
details of statutes may be shown by a few examples : one 



138 State Legislatures. [§65 

statute incorporates gun clubs ; another prohibits the use of 
fire-crackers on the pubHc highway ; another makes a new 
charter for a great metropolis ; another empowers towns to 
build bicycle paths ; another exempts family pictures from seiz- 
ure for debt. Bills have repeatedly been introduced into legis- 
latures for the taxing of bachelors ; and in one state druggists 
are forbidden to sell any patent medicines which they have not 
themselves tested. 

In the Southern states especially, there is a large amount of 
local legislation, — such as bills permitting Harding County to 
prohibit the sale of liquor, prohibiting hunting on Sunday in 
Garrett County, authorizing Scott County to tax itself for a 
railroad, and so on. Everywhere there is far too much legisla- 
tion as to local governments and corporations : new charters 
are altered by special acts, followed by amendatory acts, suc- 
ceeded by partial repeals, until the whole law is in confusion. 
To obviate this difficulty, it is the habit of most states to codify 
and consolidate the laws by issuing every few years a volume of 
revised statutes, from which amended, repealed, obsolete, or 
temporary statutes are excluded. Many other countries, espe- 
cially France and those under French influence, have elaborate 
civil and criminal codes, prepared, like a constitution, in a 
number of sections, and attempting to cover the whole field of 
human rights and responsibilities. Such codes simplify the law 
by superseding all conflicting statutes ; but the new laws speedily 
alter ; and under our system of judicial examination any para- 
graph of the code may require judicial decision before its 
meaning can be ascertained. 

It is of course necessary that, as the community advances, 
the laws shall keep pace with new conditions. New political 
dangers arise against which there must be reform legislation, 
great corporations assume new importance and must be curbed 
by new laws ; but confusion comes from the rapid change in 
the membership of the legislatures, and the habit of hasty legis- 
lation without a working out of all the details. 



§65] Output. 139 

An effort has for some years been making for agreement 
between the statutes of various states ; and conferences are held 
from year to year, by commissioners representing the various 
states, to draw up statutes on such subjects as the execution of 
deeds and wills and the responsibility for commercial notes : the 
legislatures are then asked to enact identical laws. 



CHAPTER VIII. 

STATE EXECUTIVES. 

66. References. 

Bibliography: A. B. Hart, Manual (1908), §§ 105, 106, 208. See 
also references to ch. vi above. 

The Governor: E. McClain, Constitutional Law {\()Oi^), § 39; P. L. 
Kaye, Colonial Executive prior to the Restoration (1900) ; E. B. Greene, 
Provincial Governor (1898) ; F. J. Goodnow, Administrative Law (1905), 
94-110 ; T. M. Cooley, Constitutional Limitations (6th ed., 1890), 184-187 ; 
J. H. Finley, Executive (1908), chs. i, ii, xi; W. O. Bateman, Constitu- 
tional Law (1876), 92-97, 283-285; lists of governors in Tribu?ie 
Almanac, World Almanac, etc. 

Executive Departments and Boards : F. J. Goodnovs^, Administra- 
tive Law (1905), ch. iv, pt. ii; R. H. Whitten, Public Administration in 
Massachusetts (1898); L. B. Evans, Handbooks of Am. Government 
(monographs on individual states); J. Bryce, A?n. Commonwealth (ed. 
1901), I, ch. xli ; J. A. Fairlie, Centralization of Administration in New 
York State (1898) ; J. A. Fairlie, State Adfuinistration in New York 
{Pol. Sci. Quar., XV, 50-74, 1900) ; L. A. Blue, Recent Tendencies in 
State Administration (Am. Acad. Pol. Sci., Annals, XVIII, 434-445, 
1901) ; T. Rooseyelt, American Ideals (1897), No. viii ; N. Matthews, 
City Governinoit of Boston (1895), ch. i; C. Zueblin, America?! Mutiicipal 
Progress (1902) ; S. ¥.. Sparling, State Boards of Control (Am. Acad. Pol. 
Sci., Annals, XVII, 74-91, 1901) ; J. A. Fairlie, Municipal Administration 
(1901), ch.xviii; W. Wilson, The State (1900), §§ 1183-1208; B. Wyman, 
Administrative Law (1903). — Sources : Reports of the various executive 
commissions in the states and cities, — especially on water, parks, streets, 
railroads, public lighting, prisons, asylums, and poor. 

67. The Governor. 

As the legislature is divided into two houses and many com- 
mittees, so the state executive is broken up into several related 
parts, — the governor, the heads of the great departments, and 
the minor executive officers, — often acting independently of 
each other, sometimes at cross purposes. The governor is 

140 



§67] The Governor. 141 

everywhere elected by popular suffrage, although in some 
states, especially Rhode Island, the legislature may choose if 
there be no majority. 

The term of the governor is in a few states one year only, in 
about half the states two years, in the remaining states usually 
four years ; in some states he cannot be elected to two succes- 
sive terms. In practice, popular governors in states with a 
short term are likely to be reelected for one or two terms ; in 
Massachusetts, a one-year state, it is an unwritten law that the 
governor must not serve more than three terms ; in most two- 
year states a governor stands a good chance of being elected 
for a second term ; in a four-year state he is not likely to be 
reelected at all. 

This has not always been the practice of the states : from 
1799 on, four Vermont governors filled thirty-three out of forty- 
four years ; John Hancock was eleven times governor of Massa- 
chusetts ; Jonathan Trumbull was seventeen times governor of 
Connecticut ; George Clinton was for twenty-one years governor 
of New York. The only case of the kind within recent years is 
Robert E. Pattison, who between 1883 and 1895 served two 
terms of four years each as governor of Pennsylvania, and was 
a candidate again in 1902. 

When the new states were formed, several of 'them tried the 
experiment of having an executive board at the head of the 
state, — thus in Pennsylvania and Massachusetts there was an 
"executive council"; but by 1790 all had adopted the sys- 
tem of a single head. 

The dignity of the office of governor is high. In a few states 
there are governors' mansions, a convenience which ought to 
exist in every state. The governor has a salary, ranging from 
$1,500 a year in Vermont to $10,000 in New York, Pennsyl- 
vania, and New Jersey. 

The duties of the governor may be classified as political, 
administrative, and social. As a political officer, he represents 
the commonwealth in its relations with the federal government 



142 State Executives. [§67 

and with other states in the Union ; he makes representations 
of tlie rights of his state in cases of dispute ; he has power to 
summon the legislature, to advise it, and to veto bills ; he may 
designate a United States senator, in case of vacancy, to serve 
until the next session of the legislature ; and a frequent ambition 
of a successful governor is to make his office a stepping-stone 
to the Senate. 

The governor has important administrative duties, most im- 
portant of which are the power of appointment of minor officers 
and of some department heads, and a circumscribed removal 
power. As head of the state mihtary system, he has the right 
to designate a staff, who receive complimentary military titles 
and who accompany him on occasions of ceremony ; he is 
responsible for the execution of the laws, and may even call 
upon his military force to put down mobs and insurrections and 
protect the officers of the government. He supervises other 
executive officers, may investigate their conduct of business and 
stimulate them to the performance of their duties ; and with 
few exceptions, the governor has an unlimited power of pardon 
over offences committed against the state. 

Among the social duties' of the governor is that of attending 
public meetings and celebrations, funerals of noted men, the 
graduating exercises of state universities ; of opening fairs and 
exhibitions ; of dedicating buildings and christening ships. Gov- 
ernors are always in request as speakers on public occasions, and 
frequently find this service exhausting; some excellent gover- 
nors have died in office because of the fatigue of constant 
public speaking. 

Thirty-three of the states have lieutenant-governors, who in 
most cases are presidents of the Senate, and occasionally have 
other small functions. In some states, when the governor is 
out of the state, the heutenant-governor fulfils his duties ; and 
in two recent instances they have used this power to make 
important appointments during absences of a few hours. The 
lieutenant-governor becomes important in case of the death or 



§68] Governor. 143 

the disability of the governor, because he takes his place during 
the remainder of the terra. 

68. State Executive Departments. 

In every large community the executive business must be 
divided ; and most governments have either the parliamen- 
tary system of an executive committee of the legislature, or the 
United States federal system of appointive heads responsible to 
the chief of the state. Only one of the forty-five states of the 
Union has adopted either of these two efficient systems : in 
every state, some of the chief executive officers, and in most of 
the states all of them, are elected, and are often chosen at differ- 
ent times from the governor, to whom they are not responsible. 
This is perhaps the weakest feature of our state governments, 
because it makes it impossible to carry on the various depart- 
ments with due relation to each other, because the governor has 
little power over officials who are not doing their duty, and be- 
cause both governor and department heads seek to check each 
other by securing acts from the legislature. 

The principal important state officials are the secretary of 
state, who has charge of the records and seal of the state ; the 
state treasurer, through whose hands pass the public moneys ; 
the attorney-general, who gives legal advice to the governor and 
other officers 'and is responsible for the prosecution of criminal 
suits ; the comptroller or auditor, who is the bookkeeper of the 
commonwealth ; the head of the public instruction of the state ; 
and the adjutant-general, who has direct charge of the militia. 
In a few states, as Massachusetts, the governor has also an ad- 
visory council, the relic of a similar council in the colonies. 
This body has the right to veto some of the governor's acts, 
and thus to limit his power without adding to his efficiency. 

The reason why the state administration is not better organ- 
ized goes back to the colonies, which were all jealous of their 
governors' appointments, and in many cases set up an elective 
treasurer and sometimes other smaller officers. Hence, in the 



1 44 State Executives. [§ 68 

early state constitutions the power of the governor was cut 
down, and other officers were chosen as a check against what, 
it was feared, might become a despotism. At first the legisla- 
ture appointed many of these officers, and in some states does 
so still, — for instance, the superintendent of education in New 
York State. 

With few exceptions, the important executive officers go 
through the regular process of nomination and choice by gen- 
eral suffrage at a regular election ; in Pennsylvania the attorney- 
general, secretary of state, superintendent of education, and 
some other officers are appointed by the governor. These 
officers are all paid salaries, usually too small for the responsi- 
bility. The most lucrative office is that of state treasurer, for 
in some states, either with or without warrant of law, he deposits 
state funds in banks which will agree to pay him the interest. 
In case of the failure of such banks, the treasurer is left in a 
very difficult position. 

In addition to the officers just mentioned, there is a host 
of commissionerships and executive boards, most of them 
appointed by the governor with the approval of the state 
Senate. Most of these officers serve for brief periods, and are 
subject to removal by the appointing power — the governor or 
the legislature, as the case may be. 

In practice, the relation of the governor with other executive 
officers is one of friendly cooperation, if the individuals feel 
kindly toward each other ; but they may represent opposite 
parties and have conflicting purposes. The governor can get 
the public ear through his messages ; but deadlocks are frequent 
between the governor and the treasurer or the auditor or the 
adjutant-general. The legislature is likely to side with one 
or the other of the parties ; and it is hard to get rid of an 
elected official during his term, except by the unusual process 
of impeachment. Minor state officials are responsible to 
their immediate chiefs, and are out of the province of the 
governor. 



§69] Departments and Boards. 145 

69. System of State Boards. 

In every state large executive powers are exercised through 
boards, a form of state government that is at present much 
increasing. Some of these boards are highly paid, and the 
members give a large part of their time to the public service ; 
others are underpaid ; others act without pay. The advantage 
of the board system is that there is a variety of counsel, and 
an opportunity for representing various sections of the state. 
One of the few places in the state government where parties 
are officially recognized is in the so-called " non-partisan " 
boards, — for example, a board of police, or a board of election 
commissioners, which must be composed of members of more 
than one political party. This system in practice works badly, 
because, so far from being non-partisan, it usually makes a 
board bi-partisan and introduces a permanent opposition ; or 
else the members come to an understanding that the patron- 
age and privileges shall be divided between their parties. 
Of all executive officers, " non-partisan " boards are the least 
satisfactory. 

Many boards are organized for some particular state ser- 
vice. There are 25 boards of railroad commissioners, more 
than 30 boards of health, 20 fish commissions, about 25 
bureaus of labor, besides gas commissions, police commissions 
(organized in large cities under special state law), prison com- 
missions, boards of education, and the like. In addition there 
are many boards of local state institutions, such as trustees of 
lunatic asylums, penitentiaries, and normal schools. In the 
commonwealth of Massachusetts alone there are more than 
three hundred persons who are members of various executive 
state boards, each of which feels a considerable degree of 
independence within its own limits. 

The organization of boards is everywhere much the same : 
a chairman, commonly designated by the appointing power, 
sometimes elected by the board ; a secretary, in many instances 



146 State Executives. [§7° 

the executive officer of the board, and in rural states likely to 
be the only salaried member. The boards have records, 
offices, clerks, and small allowances for travel and incidental 
expenses ; and each has the right of investigation within its 
province. 

The result is the subdivision of public business into small 
blocks, instead of its concentration into a few large departments, 
as is the case under the national government ; and the boards act 
independently of each other, and often of the governor. Even 
if the governor has a removal power, it is difficult, sometimes 
impossible, to fix responsibility among a board of several per- 
sons. On the other hand, the commonwealth has the service 
of a large number of public-spirited citizens, sometimes holding 
their places for many years together. 

Discontent with the board system has led to some concentra- 
tion of the powers of separate small boards. Thus the care of 
the insane, the prisoners, the feeble-minded and defective, in 
about one third of the states in the Union is subject to the 
general supervision of a single board of charities and corrections, 
which examines the accounts of all the local boards, and sees 
to it that the laws are observed and that humane and inteUigent 
treatment is secured. 

70. State Officials. 

Under the general control of the governor, the heads of the 
large departments, and the executive boards, are the various 
classes of subordinate officers, principally employees of the 
executive departments, supplemented by the much larger body 
of employees in state institutions. In general these persons 
are appointed by the head of their department : the attorney- 
general appoints his subordinates, the state park board the 
park laborers, and the state treasurer his clerks. The largest 
body of state officials are the teachers in the public universi- 
ties and schools. The instructors in state universities are 
commonly appointed by a board of regents ; in state normal 



§ 7i] Officials. ^ 147 

schools, by local boards of trustees or a state board of educa- 
tion ; in the public schools, — primary, grammar, and high, — 
they are almost invariably appointed by the local authorities. 
It is difficult to estimate the number of employees of a state ; 
but, leaving out of account municipal and local officials, it 
probably averages 1,000 in a state, or nearly 50,000 in all. 

Another class of state officials are the local officers, who will 
be considered in connection with local government. They are 
created by an emanation of state authority, and so far forth 
belong to the commonwealth service. Furthermore, in a few 
states the local officials, even the mayors, are appointed by the 
governor ; and in some cases county officials are appointed by 
the legislatures. 

State officials frequently hold for a brief specified term ; in 
most of the states they are subject to removal for any reason 
that seems good to the appointing power. If a new governor 
appoints a new set of commissioners, they will almost infallibly 
displace a large number of their subordinates ; hence the 
tenure of state office of any kind is usually insecure, and most 
people prefer the national public service. 

71. Givil Service Reform in States. 

The purpose of government is presumably efficient public ser- 
vice at the least cost and with the least limitation of personal 
liberty to that end. The state constitutions lay down principles, 
and the legislatures pass statutes ; but the end is not served 
unless some executive power puts them into operation. 

The state executive has two kinds of power, (i) The 
carrying out of duties assigned by the constitution or by 
statutes : if a legislature enacts that a state capitol shall be 
built by a commission appointed by the governor, no capitol 
will be built unless the governor appoints the commission. 
The commission makes contracts, and the contractors are 
compelled to carry out their agreement. (2) Administrative 
dudes : somebody must regulate the internal relations of officers 



148 State Executives. [§71 

of government, and find means of securing the performance of 
duty. Administrative law in most foreign systems of govern- 
ment is recognized as separate from either common law or 
constitutional law ; in the United States, administrative relations 
exist and are parts of the system, but are not separated from 
the ordinary constitutional law. The most significant part of 
administration is what we call the civil service, — namely, the 
body of non-military persons who serve the various agencies of 
government, national, state, and local. 

In colonial times, subordinate executive offices were com- 
monly held for a long time. The Revolution displaced most of 
the holders of such offices, and thus suggested the system of 
political removals. In Pennsylvania and New York, the system 
of political proscription was well developed by 1800 : when the 
Livingstonians got possession of the state of New York, the 
Clintonians were proscribed ; when the Clintonians came back, 
the Livingstonians went out. In every state in the Union the 
system speedily became rooted, so that now the choice of a 
new governor may result in the dismissal of the fireman of a 
court-house boiler, or of the woman who washes the steps of 
the state capitol. Such frequent changes demoralize the service, 
since good conduct and attention to business do not keep a 
man in office ; and the bestowal of public office becomes a 
subject of bargain and intrigue, till political campaigns are 
sometimes carried on for the main purpose of controlling the 
patronage. 

To meet this difficulty, two states of the Union, New York 
and Massachusetts, have adopted an elaborate system of " civil 
service reform," by providing that appointments to the minor 
posts be made by another method than by political influence 
on the heads of offices. The reform method, commonly called 
the " merit system," includes two essentials : first, that unin- 
teUigent and uneducated persons shall not get in at all ; 
secondly, that intelligent persons who wish to serve the state 
shall have an equal chance to seek appointment. Under the 



§ 7i] Civil Service Reform. 149 

old-fashioned ''spoils system," public office was absolutely 
closed to adherents of the party out of power, and also to 
thousands who voted with the party in power but had not the 
personal friendship of the politicians. The only practical sub- 
stitute is competitive examination. 

The one state in which this reform is established by the state 
constitution is New York ; in Massachusetts it depends upon a 
strong series of statutes, backed up by public opinion. In both 
states examinations are held for different kinds of employment, 
as clerkships, inspectors, watchmen, attendants in hospitals, and 
the like. The examinations deal not only with book matters, 
but with practical points : for instance, a candidate for the 
police must stand a test of his physical condition, and of his 
quickness and capacity to deal with a new problem. The list 
of persons who have successfully taken the examination is ar- 
ranged in order of their marks ; and when a vacancy occurs, the 
three highest names are certified to the appointing power, who 
must choose one of the three. Since the likelihood of a par- 
ticular favorite being one of the three is small, the appointing 
power, if he knows nothing of the three candidates other than 
is shown in their examinations, will usually choose the highest. 
After entrance into the service, an appointee remains on proba- 
tion for a brief period, before having permanent employment. 
For the employment of laborers, where any intelligent, able- 
bodied man will answer, there is a registration list, from which 
alone appointments shall be made to the state service. 

The statutes absolutely forbid anybody from demanding con- 
tributions for political purposes, and also forbid an examination 
into political or religious opinions. The principal exception to 
the provisions of the system in both states is that of veterans of 
the Civil War, who have a preference for appointment if they 
pass the examinations, and, in Massachusetts, in a few cases 
without examination. The merit system does not give the em- 
ployee an indefinite right to his office : he is subject to removal 
if he is incompetent or insubordinate. 



150 State Executives. [§71 

The system is not easy to administer ; loopholes are con- 
stantly found in it by people who wish appointments by favor 
rather than by merit. Large numbers of public servants are 
not included within the laws at all; but it has been conclu- 
sively proved that appointments made by this method secure 
people who are as likely to be good public servants as those 
appointed simply by favor, that the pressure upon appointing 
officers to make political appointments and removals is much 
relieved ; and that by putting offices out of the control of a 
temporary majority the opportunities of political corruption are 
reduced. Neither New York nor Massachusetts shows a desire 
to return to the old condition of things, and the reform is likely 
to spread to other communities. Similar systems in local gov- 
ernments and in the national service will be described in their 
places. 



CHAPTER IX. 

STATE COURTS. 

72. References. 

Bibliography: L. H. Jones, Index to Legal Periodical Literature (2 
vols., 1888, 1899); A. B. Hart, Manual (1908), §§ 105, 106; E. McClain, 
Constitutional Law (1905), § 137. 

State Courts in General: E. McClain, Co7tstitutio7ial Law {i(^o^), 
§ 139; T. M. Cooley and others. Constitutional Hist. (1889), ch. v; A. L. 
Lowell, Essays on Government ( 1889), No. 3 ; J. Bryce, Am. Commonwealth 
(ed. 1901), I, ch. xlii ; II, chs. ci, cii; S. E. Baldwin, Am. Judiciary (1905), 
chs. viii, X, xi ; J. F. Dillon, Municipal Corporations (4th ed., 1890), II, chs. 
xx-xxiii ; L. B. Evans, Ha7tdbooks of American Government (Monographs 
on individual states) ; American Bar Association, Reports. The organi- 
zation of state courts is set forth in treatises on American Law. 

Decisions : J. W. Wallace, Reporters (4th ed., 1S82), 561-591 ; Century 
Edition of the American Digest (50 vols, to 1904, 1897-) ; A?nerican Jurist, 
XXIV, 335—345 {1841); J. F. Dillon, Law Reports and Law Repoi-ting 
(Am. Bar Assoc, Reports, 1886, pp. 256-273). 

73. State Judges. 

In all civilized governments the courts play the important 
part of applying to specific cases the principles of tradition, 
written constitutions, and statutes. If, for instance, a statute 
provides that a widow shall have a third part of the personal 
property of her deceased husband, and the executors refuse to 
transfer it to her, the widow may then bring suit against them 
for her share ; and the liability to suit prevents their giving 
good title to anybody else, besides which they are subject to 
damages if they refuse to turn it over to the legal owner. In 
declaring what are the legal rights of the parties to the suit, the 
court must point out and apply the statutes, constitutions, and 
traditions which govern the descent of property. The courts 



152 State Courts. [§73 

have, therefore, more opportunity than the two other depart- 
ments of government to bring the law home to the case that 
it fits. 

The basis of the bench is the bar, — that is, the body of 
practising lawyers, from whom have come most of the dis- 
tinguished American statesmen, among them Hamilton, Jeffer- 
son, Daniel Webster, Henry Clay, and Abraham Lincoln. 
I^awyers are in the main conservative people, accustomed to 
respect established precedents and to depend upon written and 
printed records. Until a few years ago it was easy for a young 
man to get enough law to be admitted to the bar ; at present, 
many states insist upon rigorous written examinations, intended 
to secure at the outset a considerable knowledge of legal 
principles. 

The constitutional qualifications for state judges are few. 
Some states require that a judge shall be learned in the law ; 
and in practice judges are always taken from the bar. In some 
states judges must be of mature age, and in all states they are 
likely to be at least in middle life. Judges are not allowed to 
sit on any case in which they have a personal interest. 

How are judges designated? In colonial times the judges in 
eleven colonies were appointed by the governor or the crown, 
and in two by the legislature ; in only one of the thirteen states 
were the judges elected by the people. Gradually, however, 
the principle of popular election spread, until now in 32 states 
judges are elected by the people, in 5 states by the legislature, 
and in 8 only are they appointed by the governor. Upon the 
face of it, an elective judiciary is less likely to be learned, wise, 
and impartial than an appointive : the most popular man is not 
always the wisest jurist; and it is human nature for a judge to 
remember that his chance of reelection depends upon the kind 
of decisions that he renders. In 1787 the Rhode Island legis- 
lature refused to reelect the old bench of judges because it had 
made an unpopular decision on paper money. In Illinois, in 
i'i73, a judge was defeated at the end of his term because of 



§73] Judges. 153 

his opinion upon a question of railroad rates. Since the state 
Supreme Court has always more than one judge, some in- 
stances have occurred of " packing " a court in order to pro- 
duce a particular decision. Thus in 1841 Stephen A. Douglas 
was put upon the Supreme Court of Illinois, in order to make a 
majority for a decision with regard to the vote of aliens. 

Nevertheless, the elective judiciary works better than might 
have been expected. In the first place, nominations of judges 
are carefully scrutinized, and a ticket otherwise poor is some- 
times strengthened by putting on respectable judicial candidates. 
Secondly, in some states, especially in New York, the Bar As- 
sociation pays a great deal of attention to judicial nominations, 
and sometimes formulates a strong protest against persons sup- 
posed to be unfit. In the third place, experience on the bench 
is very apt to steady those who previously have been political 
partisans. 

The term of judges, whether appointive or elective, is in 
most states too short. In Vermont they are chosen by the 
legislature for only two years ; in Pennsylvania the term is 
twenty-one years by election ; in only four states — Delaware, 
Massachusetts, New Hampshire, and Rhode Island — are 
judges appointed for life, or virtually for life. The compensa- 
tion of judges is commonly much less than the ordinary profes- 
sional income of good lawyers. In Vermont the Supreme 
Court judges get salaries of $2,500 ; in New York there are 
some salaries of $17,500 a year. In a few states there is a 
provision for the retirement, upon a pension, of judges who have 
served long and faithfully. 

In some states judges can be removed by a joint protest of 
the legislature, but the more common method is by impeach- 
ment before the state Senate. There have been about forty 
such attempts to remove, and a few judges have actually been 
removed ; in other cases judges have resigned under impeach- 
ment in order to avoid conviction. In New York one judge 
was impeached, and another compelled to resign, for violence 



154 State Courts. [§ 74 

and illegal behavior on the bench ; one was a Tweed Ring man, 
the other a creature of James Fisk, Jr., in his attempt to steal 
the Erie Railroad. Executive officials, as well as judiciary, may 
be impeached or removed ; and one Western governor has 
thus been removed from office. With an elective judiciary, 
however, the simplest way to get rid of a bad man is to mark 
him for defeat at the next election. 

74. State Courts. 

State judges are organized into courts arranged in a progres- 
sive series. In Massachusetts, for instance, there is a system of 
police and municipal courts in large cities, with additional 
justices and two special justices, each sitting in a separate 
place ; in each county there is also a probate court, in charge 
of wills and inheritances ; in each county there is a district 
court, with a district attorney, and the judges are assigned 
according to the needs of the service ; above this is a superior 
court, the eighteen judges of which have a salary of $6,500 
each ; above this is a supreme judicial court, with seven judges, 
at a salary of $8,000 each. The chief justice in each of the 
two systems has $500 extra salary. Appeals may in general be 
brought from district courts to the superior court, and from the 
superior court to the Supreme Court ; they may also be brought 
from the probate court to the Supreme Court. 

Under this system, small cases usually fall first to a lower 
court ; then, if appealed, to the middle jurisdiction, whatever 
it may be ; and thence to the highest state court. The result 
is unification of decisions throughout the state ; and the Su- 
preme Court takes pains, so far as possible, to follow its own 
precedents, so that there may be a traditional unity. 

The details of organization and administration, the methods 
of appeal, the kinds of question which may be brought in origi- 
nal suit before a lower and a higher court, the relations of the 
general system of state courts to municipal courts, — all these 
questions are subject to great variations from state to state. 



§ 7S] Organization. 155 

Everywhere the principle is the same : that questions of law 
shall be transferred from court to court, up to the highest state 
court ; and especially that questions of personal rights and other 
constitutional privileges shall be eventually settled only by the 
highest court. 

In addition to the regular courts, there are in most states 
justices of the peace, with jurisdiction over small offences and 
suits ; these may be considered, perjiaps, as a fourth system of 
inferior courts. In some states there is a provision for courts 
of conciliation, or for tribunals of arbitration ; but these are 
rather a means for umpiring disputes than for settling them 
under the principles of law. Probate courts act with little for- 
mahty where there is no opposition ; but in hotly-contested will 
cases they may spend days in hearing testimony and arguments, 
and make decisions on questions of law, subject to examination 
by a higher court. 

75. Criminal La-w and Jurisprudence. 

Perhaps the most obvious purpose of the courts is to try 
criminal cases and other offences against the community. Such 
cases may be suggested by the injured person or his friends, 
but must be tried by a public prosecutor. The usual penalty is 
fine or imprisonment, or both ; and in most states the death 
penalty for the most aggravated crimes. 

Crimes are usually defined by statute, but the laws of the 
states are very different in the minuteness and carefulness of 
their distinctions ; of course the community with the highest 
standards has the most statutory crimes. Where no distinct 
statutes have been passed, offences in most states may be pun- 
ished under the common law, — that is, the nature of the 
offences and the penalty are to be ascertained from the practice 
of the courts in England and America. 

The municipal and police courts have to do almost solely 
with petty crimes, — drunkenness, fighting, destruction of prop- 
erty, and the like ; and they have a summary process with very 



156 



State Courts. [§ 75 



speedy examination of witnesses, so that a trial often occu- 
pies only three or four minutes, and the penalty is at once 
fixed and the punishment begins. In most of such cases the 
guilt is obvious, or the prisoners are too ignorant of the laws to 
protract the matter ; yet on questions of law appeal practically 
always lies from the municipal court to some higher court. 
The middle courts of the regular state series commonly take 
cognizance of the most serious crimes. Here, as cases may 
involve life and death, trials are sometimes long and searching, 
and may last two months or more. The highest courts seldom 
examine into the facts in criminal cases, but pass on questions 
of law which may be appealed to them. 

In the system of criminal jurisprudence are deeply imbedded 
the principles of indictment and irial by jury. Indictment is 
the process of preliminary examination, usually by a grand jury, 
of the evidence against a man charged with crime ; if the jury 
sees reason to send the case to trial, it " finds a true bill," and 
the prosecutor must bring the matter to trial. In justice courts 
and municipal courts the jury is usually dispensed with, although 
in most states it must be had if the prisoner demands it. The 
more serious crimes are always tried by a " petty " jury, the 
common rule being that there must be twelve jurors and a 
unanimous verdict ; but several of the far Western states allow 
a decision by ten, or even fewer, jurors out of the twelve. In 
most states a jury trial may be waived if the prisoner so desires. 
The jury system is at present the subject of much complaint : 
jury duty is tedious and habitually avoided by busy men ; the 
professional juryman is unsafe ; and in many kinds of cases, 
especially those having to do with liquor-selling and strikes, 
twelve men cannot be found who will unite in a verdict of 
guilty. 

In all important cases the state is represented by a prose- 
cuting officer, whose duty it is (i) to secure evidence to 
justify a warrant for the arrest of a suspected man ; (2) to 
present evidence to a grand jury which will induce it to bring 



§ 75] Criminal Law. 157 

in an indictment; (3) to produce witnesses and to marshal 
the evidence at the actual trial. Everywhere in America pris- 
oners are allowed to employ counsel, and if they have none, 
the court will make assignments in serious cases. The court 
designated a well-known lawyer to appear in behalf of the 
assassin of President McKinley in 1901. 

The ordinary punishment for aggravated crimes in the United 
States is imprisonment, for terms varying from one hour to a 
life sentence. All sentences for terms of years are subject to a 
deduction of about one fifth for good conduct while in prison ; 
and the average of long sentences is much brought down by 
the frequent use of the pardoning power, so that prisoners 
under life sentence are said actually to average about ten years 
in prison. 

The former cruel and brutal punishments for crimes have 
officially disappeared entirely in the United States : tongue- 
piercing, ear-slitting, pillorying, branding, and the like are no 
longer ordered by the courts, although in Delaware public 
whipping is still a penalty. There is, however, a lamentable 
practice, amounting almost to a system, of so-called " lynch 
law," which means that people (in the Southern states usually, 
though not invariably, negroes) shall be seized by a mob and, if 
suspected of aggravated crimes — including rape, murder, arson, 
and shooting with intent to kill — be put to death by shooting 
or hanging, or in many instances by burning at the stake or by 
other tortures. It need hardly be said that lynch law is neither 
law nor justice, since it is executed in a period of great excite- 
ment, without any proper process for ascertaining whether the 
person charged is guilty ; and the fierce and vindictive punish- 
ments not only tend to brutalize those who take part in them 
and the community which allows them, but do not seem to pre- 
vent the crimes. 



158 



State Courts. [§ 76 



76. Civil Law and Jurisprudence. 

Much greater in number than the criminal proceedings are 
the civil suits of every kind. In general, the jurisdiction of the 
courts extends to all subjects regulated by legislative enact- 
ments ; but in many instances, where there is no positive 
statute, the court takes the principles of common law. In all 
the states but two or three there is a system called " equity," 
which is a special kind of legal process, originally intended to 
furnish a speedy remedy where the common law was round- 
about or inadequate. The difference between law and equity is 
not so much in legal principles as in the way in which they are 
enforced : courts of law enforce their judgment against the 
property of the defendant; courts of equity against his person, 
by commanding him to do or refrain from doing a certain thing. 
The penalty of his disobedience is punishment for contempt of 
court. Some states have special chancery (equity) courts ; in 
others, equity proceedings are held by the regular courts. 

The prime principle with regard to civil jurisdiction is that 
the court must have a case before it. In a few states the 
legislative or executive officers have the right to ask the Supreme 
Court for an opinion upon a proposed measure ; but, without 
some such constitutional requirement, judges refuse to give 
decisions in cases which are not argued before them so that 
both sides may be represented. 

The courts attempt to follow previous decisions involving the 
same principles : thus the lower Kentucky courts will try to 
follow the decisions of the Supreme Court of Kentucky, and 
the Supreme Court of that state will usually follow its previous 
decisions. When no decisions can be found exactly in point, 
lawyers and courts refer to decisions of other states, or of the 
United States, or of England. Hence the skilled and suc- 
cessful lawyer is he who, by his knowledge of decisions already 
rendered, can form a probable surmise as to the result of a given 
case ; and he will dissuade clients _from entering suits not likely 
to be sustained. 



§ 76] Civil Law. 159 

The subjects upon which suits may be brought are innumerable. 
Perhaps the most important branch of the law has to do with 
real property, — the holding of land, and the transfer of title by 
sale, inheritance, or will. Another source of litigation is the 
collection of debts, either to ascertain the amount justly due or 
to attach the debtor's property if he declines to pay. The great 
development of corporations of every kind, especially railroads, 
has led to an immense body of decisions as to what constitutes 
membership in a corporation, what rights corporations have to 
acquire and dispose of property, and especially how far cor- 
porations are acting within or beyond the charter which gives 
them existence. Another great branch of law concerns " torts," 
or injuries and damages. Perhaps the most important function 
of the courts is to decide on the powers and relations of oflEicers 
of state and municipal governments. 

The methods of civil court business are much Hke those in 
criminal law : jury trials are very common on questions of 
property, and especially on questions of personal damage ; both 
sides are usually represented by counsel, although any man has 
the right to appear in his own behalf in a suit. Testimony is 
introduced, and there is a vast accumulation of precedent and 
practice upon the question of what is and what is not proper 
evidence ; for example, hearsay is commonlj» not legal evidence, 

— that is, A may tell what he saw, but not what B told him that 
B saw. Most evidence is given in open court, with opportunity 
for cross-examination ; but " depositions " — that is, sworn testi- 
mony taken down in writing — are admitted under "some cir- 
cumstances. Each side has the right to secure a " subpoena " 

— that is, a legal summons to appear and give testimony — 
and witnesses may be compelled to appear and testify. Wives 
are not obhged, in most cases not allowed, to testify against 
their husbands ; and lawyers, physicians, and ministers are 
usually exempt from testifying on matters intrusted to them in 
professional confidence. When the testimony is all in, the 
lawyer on each side argues the case ; and then, if it is a J'^ry 



i6o State Courts. [§ 76 

trial, the court sums up the evidence in a " charge," in which 
it informs the jury what the law is and summarizes the evidence. 
In some states the jury insists also on deciding for itself what 
the law is. 

When a suit is once decided, it is very common forthwith to 
move for a second trial before the same court, on the ground of 
informalities ; and in that case the whole process must be gone 
through a second time, the same witnesses summoned, often at 
great expense to the parties. If any considerable amount of 
property is involved, or if important principles come in, it is 
very common to carry the case up to the next higher court in 
one of two methods. One way is by appeal, under which the 
whole case is tried again, the evidence heard, and the law laid 
down by the upper court, with a jury if demanded. The much 
more common method is by writ of error ; that is, one of the 
parties sets forth that the judge in the lower court has made 
mistakes in his statement of the law, and the upper court is 
therefore asked, not to go through the whole case again, but 
on the basis of the errors to notify the judge of the lower court 
that he must reverse his decision. In such an appeal, the 
question comes first on the particular points claimed to be 
erroneous ; but the upper court may, and often does, go into 
the whole case. 

Important suits are likely to be appealed the second time from 
the middle courts to the state Supreme Court, usually on writ 
of error ; and the judgment of this court is final, unless cause 
can be found for transferring the suit to the federal courts, where 
again it may go through two stages. It is therefore perfectly 
possible that a man whose property is wrongfully claimed by 
another will be compelled to fight his case through six different 
suits before the question can be finally adjusted. In such long 
protracted litigation the richer party is most likely to keep up 
the contest. 

The courts are not entirely confined to the decision of con- 
tested cases ; they also issue writs, which are intended to be 



§77] Control of Executive. i6i 

simply preliminary to a suit. Such are the writs of " habeas 
corpus," which have been described above ; the decision takes 
place only after the person responsible for the confinement has 
had an opportunity to explain. The writ of " error " just de- 
scribed is not technically a decision, but a direction to a lower 
court to make a decision. The writ of " quo warranto " is a 
means of compelhng a corporation to show whether it is acting 
within its charter. The writ of "certiorari " directs a lower 
court to send up to a superior court the record of a proceeding. 
The writ of " mandamus " is directed to some corporation or 
public official, instructing him to perform an omitted duty. 
The writ of " injunction," now perhaps the most frequently 
used, is a decree rendered by a court of equity commanding 
the defendant to do, or refrain from doing, a certain thing, — 
for instance, not to put up a building which is claimed to be on 
another's land, till the title can be settled. In the former case 
it is called a mandatory injunction. The injunction may be 
temporary or permanent. A temporary injunction is issued 
in cases where the acts of the defendant are causing irreparable 
damage. The usual practice is for the court to call upon the 
defendant to show cause why the temporary injunction should 
not issue. If he fails to_do so the court will issue the tempo- 
rary injunction. In the final hearing as to whether the injunc- 
tion shall be made permanent, full opportunity is given to both 
sides to be heard. 

77. Judicial Control of Executive Officials. 

In most continental governments — as, for example, France 
— the principle called " separation of powers " means that legis- 
lative and executive departments are separated from each other : 
what the French Chamber and Senate unite in declaring a 
statute, must be obeyed by everybody ; if the act of an execu- 
tive official is contested, a court composed practically of his 
official superiors declares whether he is in the right. 

The American idea of " separation of powers " is absolutely 



1 62 State Courts. [§77 

different Our courts may not only decide upon their own 
jurisdiction and rights, but may also act as administrative 
courts, and even decide upon the vaHdity of statutes : the final 
authority upon the legality of many legislative and executive acts 
is not in the highest executive or legislative bodies, but in the 
courts. 

The state governor and other officers have not sufficient 
authority to appoint and remove officials, and find it hard to 
compel minor officials to do their duties. This necessary service 
is performed, although imperfectly, by the state courts ; and to 
this end they freely use their power of issuing writs. For in- 
stance, quo warranto is invoked to compel an official to vacate 
an office to a duly-designated successor ; or mandamus to 
force him to pay legal salaries ; mandamus is rarely issued 
against the governor, but constantly issued against local offi- 
cials, mayors, city treasurers, auditors, comptrollers, and the 
like ; and there has been a recent instance in New York City 
where mandamus was issued to compel members of the city 
council to meet and vote bonds for a legal debt. The courts 
also frequently issue injunctions against officials, to prevent 
their issuing documents and thus creating vested rights before 
the questions at issue can be reached in regular suit which will 
test the questions of law involved. 

The result of the whole system is that the courts, and not the 
superior state executive officials, find means to compel a pub- 
lic officer to do his dut}'. The penalty of a neglect is contempt 
of court, — that is, imprisonment at the discretion of the court 
without further trial, — and the fear of this penalty is almost 
always sufficient ; or criminal suit may be brought for malfeasance 
in office. 

Another frequent method of judicial control of the executive 
is through ordinary suits brought by individuals. In France, if 
a suit of this kind arises between an individual and a function- 
ary, it is tried by a special administrative court, presumably in 
sympathy with the official. In the United States such a case is 



§ 78] Declaring Statutes Void. 163 

habitually tried as a question of private law, without any refer- 
ence to the public station of one of the parties. For instance, 
a tax collector levies an illegal tax on a building ; the owner 
refuses to pay, whereupon the collector seizes the building and 
prepares to sell it to satisfy the tax ; suit is then brought by one 
side or the other for tlie possession of the property ; and in de- 
ciding who is legally in possession, the courts must incident- 
ally hold that the tax either is or is not valid. Such cases 
occur by thousands every year, and enable the courts to define 
very carefully the actual powers and responsibilities of public 
oflSce. 

78. Declaring Statutes Void. 

The English theory of government, soon transferred to the 
colonies, was that a law once made controls everybody, includ- 
ing the crown and the courts : the attempt of James II to set 
up a dispensing power, and to relieve certain persons from acts 
of Parliament, brought about the Revolution of 1688. In a few 
recorded cases, English courts declined to apply an act of Par- 
liament because it was contrary to natural justice ; but English 
courts for at least two centuries have accepted the latest act of 
Parliament as superseding all previous conflicting acts. In the 
colonies, statutes were in some cases set aside by the colonial 
courts because not in accordance with justice ; but it was only 
when the system of written constitutions was introduced that 
the necessity for decisions on the validity of statutes became 
evident. 

Who is to decide whether the law does or does not contravene 
the constitution? If the legislature has this power it will of 
course hold its own law good, and the will of the legislature 
will override the restrictions of the constitution. The governor 
and the other executive authorities must decide for themselves 
whenever the question arises ; but such decisions are likely to 
affect only those laws involving the exercise of executive power. 

The state courts are obliged to set one kind of law against 
another, because one sort may be invoked by one party, and 



164 State Courts. [§78 

the other by the other party. The issue of the power of the 
courts was first distinctly raised in 1780, in the New Jersey case 
of Holmes v. Walton, when it was held that an act of the legis- 
lature was contrary to the constitution of the state, and hence 
was no law ; the legislature speedily changed the law to agree 
with this decision. When the federal constitution of 1787 was 
framed, providing for direct relations with individuals and fur- 
nished with a strong supreme court, a new feature was intro- 
duced into this question, inasmuch as the federal constitution, 
and acts and treaties made in pursuance thereof, were to be 
the supreme law of the state and binding upon the state courts. 
The intention of this clause was to authorize and compel a 
state judge to decide whether a state act was in accordance 
with the federal constitution ; and the history of the convention 
shows clearly that it was intended that the federal courts should 
have the power to nullify state statutes that were not in accord- 
ance with the federal constitution. 

There is no evidence that the convention faced the question 
whether national courts could also nullify national statutes ; but 
in 1803, in the decision of Marbury v. Madison, it was held 
that part of an act of Congress was unconstitutional, and there- 
fore not binding ; and in the case of Fletcher v. Peck, in 1810, 
a state statute was for the first time distinctly held void by the 
United States Supreme Court. 

This principle was slowly adopted in the states with reference 
to their own laws. In most state constitutions it does not 
appear as a distinct right conferred by the constitution; it 
simply is tacitly held to be necessary, because in deciding 
specific cases the courts must take cognizance of the laws that 
apply, and if two conflicting laws are invoked it must decide 
which is valid. If one law appears. in a constitution amendable 
only by a special process, then that law must prevail against 
any subsequent contrary statute. 

This power to review legislation is one of the things which 
give state courts their highest dignity and importance, and 



§ 78] Declaring Statutes Void. 165 

make state judges the guardians of personal as well as of prop- 
erty rights. Many courts, exercise this great power with hesi- 
tancy ; if possible, they decide the case without raising the 
issue, or they attempt to put such a construction on the statute 
that it will be agreeable to the constitution. Nevertheless, 
every year scores of state laws are disallowed and set aside. 

Consciously or unconsciously, the power is used to prevent 
uncommon or new kinds of law : for instance, the elaborate 
labor legislation throughout the country has been much toned 
down by court decisions disallowing or modifying provisions of 
statutes. It is impossible entirely to separate personal, or even 
selfish, methods from the legal duty of standing by the great 
and fundamental law ; the practice of reviewing statutes, how- 
ever, leads to a very strong respect for the constitution. If the 
community is sufficiently interested, an unrighteous decision can 
be set aside by later amendment to the constitution, which the 
courts must then acknowledge and apply. 

We do not always realize that courts have as much right to 
declare acts of executive officials void as they have to pass on 
statutes : the processes of review, mandamus, injunction, and 
the like, which have been discussed already, are often simply a 
declaration of the court that what the executive has tried to do 
is not in accordance with the constitution. In form the decision 
of a court on constitutional or other questions binds only the 
parties to the immediately pending suit, but it is notice of the 
law to all others : if a mayor makes a contract for a bridge in a 
way forbidden by the constitution, and the courts hold that 
contract void, the contractor cannot get his money ; if another 
mayor attempts to make a second contract of the same kind, 
the contractor from the beginning has no legal reason to expect 
to get his money, and hence will probably hold off. In this 
way, decisions which directly involve small amounts or slight 
rights become landmarks of the constitutional power of the 
state governments. If a poor woman, who is put off a street 
car because the conductor will not recognize her transfer, brings 



1 66 State Courts. [§ 78 

suit and gets a judgment against the company, it may lead to 
a reform of the whole transfer system for the benefit of thou- 
sands of people. 

On the whole, the system of declaring statutes and executive 
acts void works well ; but it throws immense responsibility upon 
the judges, who after all are human beings. The fact that they 
have such vast, and in many cases such final, power is simply 
another argument for securing judges by appointment, for giving 
them long terms and good salaries, so that men of the highest 
integrity may be attracted to and may remain upon the bench. 



Part IV. 

Local Government in Action. 



CHAPTER X. 

RURAL UNITS OF GOVERNMENT. 
79. References. 

Bibliography: G. E. Howard, Local Constitutional Hist. (1889), I, 
475-498; A. B. Hart, Matiual (1908), §§ 107, 108, 209, 290 ; J. A. Fairlie, 
Local Governmertt (1906), 273-279. 

General Principles of Local Government : J. A. Fairlie, Local 
Government (1906), chs. i-iii ; H. C. Lodge, Frontier Town (1906), Nos. 
I, 9; A. B. Hart, National Ideals {Am. Nation, XXVI, 1907), ch. vii; G. 
E. HovidiTd, Local Constitutional Hist. (1889), I ; T. M. Cooley, Constitu- 
tional Limitations (6th ed., 1890), ch. viii ; J. F. Dillon, Municipal Cor- 
porations (4th ed., 1890) ; F. J. Goodnow, Administrative Law (1905), 
Book III, ch. ii ; J. K. Hosmer, Anglo-Saxon Freedom (1890), ch. xvii ; B. 
A. Hinsdale, Am. Government (rev. ed,, 1895), ch. Iv; T. M. Cooley, 
Constitutional Law (1898), ch. xvii. 

Town and County Governments : Monographs on local govern- 
ment, in Johns Hopkins University, Studies, I, Nos. 3, 5, 12 (1883) (^1* 
nois, Pennsylvania, Michigan, Maryland, South Carolina), III, Nos. 2- 
3, 5-7 (1885) (Virginia, Maryland), IV, Nos. i, 2, 4 (1886) (New York, 
Rhode Island, Pennsylvania), VIII, No. 3 (1890) (Wisconsin), XI, No. 11- 
12 (1893) (South and Southwest) ; E. Channing, Town and County Govern- 
ment {lh\d., II, No. ID, 1884) ; F. J. Goodnow, Administrative Law {1905), 
Book III, ch. iii ; J. A. Fairlie, Local Government (1906), chs. iv-xvi ; A. B. 
Hart, Practical Essays (1893), Nos. vi, vii ; G. E. Howard, Local Constitu- 
tional History (1889), 1,62-79, 135-238, 408-470 ; A. B. Hart, Town Gov- 
ernment on Cape Cod {Nation, LVI, 343-345, 1893) ; J. Bryce, American 
Commojiwealth (ed. 1901), I, chs. xlviii, xlix; A. de Tocqueville, Democ 

167 



1 68 Rural Governments. [§ 80 

racy in America (1835-1840, Reeve's translation), I, ch. v ; W. Wilson, The 
State (1900), §§ 1030-1040. — Sources : Annual reports of county commis- 
sioners, supervisors, selectmen, towns, etc. ; organization in statutes, F. J. 
Stimson, American Statute Law ( 1886), §§ 500-503. 

80. Creation and Functions of Rural Governments. 

Within each state the people determine how they will exercise 
the functions not reserved by the federal constitution, and every- 
where they choose to commit large responsibihty to the local 
units. Sometimes they act through the state constitutions ; but 
details are to a large degree determined by the legislatures, and 
therefore the powers and functions of the local governments are 
constantly subject to change. 

To prevent too rapid alteration, some states have a constitu- 
tional provision that no special laws shall be passed for counties 
or towns or cities ; but these provisions are easily avoided by 
passing a law for classes of communities, — say, counties of 
less than 50,000 inhabitants and more than 49,000, or cities 
of over 30,000 people, there being only one such county or 
city. In Ohio, in 1902, the whole machinery of city gov- 
ernments was upset by a decision that such classification was 
unconstitutional. 

The oldest and most frequent type of local government is 
the ordinary rural government, of which there are three vari- 
ties : (i) small special divisions, as school and fire districts, 
boroughs, and villages ; (2) towns or townships ; (3) counties. 
The boundaries of such jurisdictions are in many states subject 
to alteration by the legislature, without a vote of the inhabi- 
tants. The type of government is partly set by constitution 
or statute, and is partly so far traditional that sweeping 
changes would be resisted. 

The most noticeable feature of rural governments is that there 
is no exact separation of powers, such as exists in state and 
national governments : town-meetings are little legislatures, yet 
exercise many executive functions ; county executive boards 
make by-laws and lay taxes. The functions which ordinarily 



§ 8i] Minor Units. 169 

fall to such governments are schools, roads, bridges, the poor, 
fire protection, water supply, and in some communities electric 
lighting, public libraries, and the like ; and the assessment and 
collection of taxes for such local purposes. They have power 
also to make local ordinances for public order, — as, for in- 
stance, against riding bicycles on the sidewalk. It will be 
seen later that such functions are much more important in 
cities, which have to provide for a complicated and numerous 
population. 

81. School Districts, Villages, and Boroughs. 

The smallest unit of local government is the school district, 
which in many states has authority to raise money, to lay taxes 
for the carrying-on of district schools, and even to issue bonds 
for the building of schoolhouses. A public meeting of the 
voters is held ; and in New England there is a clerk, a treas- 
urer, a moderator, and a board of district-school directors. 
While the immediate control of the school district gives ex- 
perience and confidence to the people, modern education 
requires grouping into larger areas, and demands trained 
teachers such as can hardly be secured by the district system. 

Another very common unit is the village, which is an incor- 
porated body like a city. In New York, the village government 
is a body of trustees with a president, and there is a village 
treasurer, a clerk, a collector, and a road commissioner. A 
similar unit is the borough, found in several states ; it has 
existed in New York and Pennsylvania ever since colonial 
times, and therefore ranks with the town and the county as 
one of the forms of traditional government. Usually the 
borough has a population of two or three thousand ; but bor- 
ough government is rather cumbrous : in Pennsylvania, for 
instance, it includes a school board, a board of health, and a 
poor board, besides burgess or mayor, treasurer, secretary, 
chief of police, road commissioner, tax collector, and high 
constable. The borough of Jacksonville, Pennsylvania, has 
had to provide these officers out of 82 inhabitants. 



170 Rural Governments. [§ 8 

Both villages and boroughs are usually withdrawn from the 
town or township in which their area is situated, and have 
direct relations with the county and the state. Probatly the 
best form of borough government is that of a single elective 
council. Whenever a village or a borough arrives at a suffi- 
cient population, it is usually allowed to become a city. In 
Maine and other states are various irregular local units not 
having a definite organization, called plantations, districts, 
and gores. 

82. The Town System. 

True rural government is best expressed by one of the three 
most prevalent systems, — the town, the county, or a combina- 
tion of town and county. Of these the town, or township, is 
perhaps the most interesting. 

The New England town has a great tradition behind it, 
inasmuch as in Plymouth, Massachusetts, Connecticut, New 
Haven, Rhode Island, and New Hampshire, towns were or- 
ganized even before the colonial governments, although as 
soon as the latter were founded they at once asserted their 
right to prescribe duties and grant privileges to the towns. 
For a long time supposed to be a creation of the colonists, it 
IS now estabhshed that the New England town was a reorgani- 
zation of that type of English parish which had a general 
parish-meeting of rate-payers. Many of the present New 
England towns are simply old colonial towns continued ; many 
more, however, have been subdivided and set off at various 
times by the state legislatures. In population they vary from 
Cambridge, New Hampshire, with 17 people, to Warwick, 
Rhode Island, with 21,000 people. Some of them are remote 
little agricultural communities ; others are bustling and prosper- 
ous manufacturing places. Town government in New England 
includes three elements, — town-meeting, board of selectmen 
(pronounced selectman), and minor town officers. 

The town-meeting comes at least once a year, and usually, 
by adjournment or special meetings, much oftener. It must 



1 



§82] Town System. 171 

be called by a warrant printed or posted beforehand, specify- 
ing the business ; and no matters can legally be introduced 
which do not appear on that schedule. 

For the accommodation of the town-meeting there is always a 
town hall, sometimes built at the cross roads away from a village. 
To direct the meeting, a moderator is chosen; in many towns 
the same man serves year after year in that important office. 
The next officer is the clerk, commonly reelected from year to 
year. The thing most characteristic of a town-meeting is the 
lively and educating debate ; for attendants on town-meeting 
from year to year become skilled in parliamentary law^ and 
effective in sharp, quick argument on their feet. Children and 
others than voters are allowed to be present as spectators. 
In every such assembly, four or five men ordinarily do half 
the talking ; but anybody has a right to make suggestions or 
propose amendments, and occasionally even a non-voter is 
allowed to make a statement ; and the debate is often very 
effective. 

The development of manufacturing in New England has 
pulled town government awry. A manufacturing section may 
spring up on a water-power in one corner of the town ; and the 
interests of the factory owners and operatives are different from 
those of the farmers. Hence arise constant squabbles in town- 
meetings, until the new community gets itself set off as a sepa- 
rate town. The farmers naturally resent this attempt to remove 
a taxable property out of their jurisdiction, and also the efforts 
of summer residents to secure a town of their own ; but, under 
the universal American principle that a man can have but one 
vote, summer residents usually have no voice in the town- 
meeting of their preferred abode, and accept the taxes imposed 
by the vote of their neighbors. 

In very early times it was found that business had to be done 
in the intervals between town-meetings ; and hence grew up 
the system of " townsmen," now usually called selectmen or 
trustees, — an executive board of three to nine members, chosen 



172 Rural Governments. [§82 

for a year in town-meeting; it holds frequent sessions, and has 
authority to make contracts and payments under votes of the 
town-meeting. For school purposes, a separate committee or 
board is provided. 

Most town-meetings choose a host of minor officers, some of 
them holding queer titles. The town of Middlefield, with 82 
voters, in 1895 elected one clerk, three selectmen, one auditor, 
one treasurer, one collector, two constables, one road commis- 
sioner, three school committeemen, one superintendent of 
schools, three trustees of the public library, and one town 
librarian, — a total of 18 town officers, leaving 64 unlucky 
voters without a single office. 

The town and township also exist in New York and Pennsyl- 
vania, but there the main functions of government are divided 
with the county. In most of the Western states there is also 
some form of town or township government, but the unit of 
those states is almost invariably a " public land township," — 
that is, an area of six miles square, not having the historical 
coherence of the old New England towns. In the South, towns 
were made units in some of the reconstructed states, but all 
of them have again been abandoned ; and the town-meeting 
has never taken root, perhaps because the population is so 
scattered that it is difficult for voters to get together. 

One of the notable things about town government is that 
the state legislatures constantly throw new duties upon town 
officers : they have to assess and collect state taxes ; they 
have to carry out state laws for the prevention of contagious 
diseases ; they must keep records of births, deaths, and mar- 
riages ; they must apply election laws ; they have a hundred 
other important functions. The state follows them up with 
threats and fines for neglect of duty ; in some states the state 
executive may vacate town offices for neglect ; and everywhere 
the state courts grant mandamus and other writs to compel 
town officers to do their duty. 

The principal functions of the town are performed in town- 



§82] Town Meeting. 173 

meeting, and may conveniently be classified as follows : — 
(i) The election of town officers for the next year, a vote 
commonly taken by ballot ; formerly representatives to the state 
legislature were also chosen in town-meeting, but now it is cus- 
tomary that they should be voted for at the regular state election 
by ballot. (2) The control of town officers, and the discussion 
of their oral or printed reports, — often the subject of animated 
criticism. (3) The general legislative function is the making 
of by-laws, — that is, local ordinances, such as forbidding the 
destruction of town property or the running of animals at large. 
(4) An especially important group of duties is the financial, — 
as the making of appropriations for town purposes, especially 
schools, and the laying of taxes for those purposes; this in- 
cludes also the opening and maintenance of highways, a duty 
poorly performed. (5) All town-meetings exercise a variety of 
social functions, including many petty matters : for instance, 
the Worcester town-meeting in 1779 voted not to read the 
Psalms line by fine before singing them ; and one town-meeiing 
voted to indemnify an unhappy person who had unwittingly 
received a counterfeit bill. The question of the sale of liquor 
is one of those most frequently brought up at town-meeting, 
and the prosecution of liquor-sellers is often authorized. 

There was a time when the town-meetings had also large 
political functions : they instructed their representatives upon 
matters of great consequence, and they frequently passed votes 
on pending political questions, as, for example, the vote of the 
Boston town-meeting in 1729 : — 

"That you Continue to Pay a due Reg^ard to His Excellency Our 
Governor, and that you Endeavor that He may have an Honorable 
Support, But we desire at the Same time That you use your utmost 
Endeavor That the Honorable House of Representatives may not 
be by any means Prevailed upon or brought into the Fixing a 
Certain Sallary for any Certain time. And if your Pay Should be 
diverted from you Depend on all the Justice Imaginable from this 
town whom you Represent." 



174 Rural Governments. [§83 

The variety of the town functions may be illustrated by an 
abstract of the warrant of the town of Brunswick, Maine, in 
1899. It included election of officers and reports of former 
officers ; appropriations of money for schools, highways, fire 
department, and contingent expenses (lights, abatement of 
taxes, Memorial Day, public library, street sprinkHng) ; dis- 
position of real estate ; by-laws, public buildings, sale of liquor, 
numbering of dwellings, bicycle paths, electric lights, purchase 
of coal, the town farm, the town cemetery, a larger drinking- 
tub to the fountain, and the town hearse. 

83. The County System. 

The rival system of rural government is that of the county. 
At the time of colonization, county assemblies had entirely 
ceased in England, and the shire government was the Court of 
Quarter Sessions, a board of magistrates appointed by the crown 
for each county. Such a magistrate was Justice Shallow in 
Merry Wives of Windsor : "Justice of peace and 'Coram.' 
— Ay . . . and Custalorum." In the New World a similar 
organization was founded in colonial times, including an ap- 
pointive county board. Since the Revolution, elecdve boards 
have been usual except in North Carolina, where the legislature 
appoints the county officers. 

The number of counties varies from 3 in Delaware, to 243 
in Texas ; the most populous county is New York, with 2,050,- 
000 inhabitants. The average area of a county, except in the 
thinly-populated Northwestern states, is from 500 to 800 square 
miles; and the average population outside of the cities is some- 
where from 10,000 to 20,000. Of course a popular assembly 
is impossible for such large districts. In place of it, is set 
up the board of elective commissioners, the county treasurer, 
school superintendent, sheriff, registrar of deeds, and many 
other officers ; in the so-called " compromise " states there is 
also a representative county board. 

The two distinct types of county government are the New 




SAN BERNARDINO 



CALIFORNIA 



COUNTY BUILDINGS 



§83] County System. 175 

England and the Southern. In New England the county is 
simply a judicial and military subdivision : the court-houses, jails, 
registries of deeds, and in some cases the poor-houses are county 
buildings ; but the counties have very little control over roads, 
and almost none over the conduct of individuals. Upon the 
whole, the county gradually gains ground in New England as 
an administrative unit, although it is hard to keep it from 
extravagance. 

In the South the county has been since colonial times almost 
the sole unit of local government. In Louisiana the so-called 
" parishes " are really counties. The principal officers are a 
board of county commissioners, and financial officers — also 
superintendents of roads and of education; there are various 
judicial officers, including a public prosecuting attorney, who in 
Virginia is popularly called " Commonwealth." In all county 
systems the most important and best paid office is that of 
sheriff. In large city-counties like Cincinnati, the sheriff enjoys 
fees which may amount to many thousands a year : the sheriff 
of Erie County (Buffalo), New York, rose to be governor of 
his state and president of the United States. 

Practically all the functions of Southern local governments 
are vested in some of these county officers, — the schools, the 
poor, roads, bridges, assessment and collection of taxes, and 
local legislation for the health and morals of the people. The 
people seem to feel no need of smaller local governments, except 
where there are enough to make a village or a borough ; and 
even in those most of the local government is carried on by 
county officers. The former parishes in Virginia and elsewhere 
have ceased to be governmental units. 

One advantage of the county system is that it tends to bring 
about one general kind of local government, for it is un- 
common for a state to have different types of government in 
different counties ; and it is therefore easy to fix responsibility 
and to apply the control of the state to the performance of 
local duties. Throughout the South and West, there is an elab- 



1 76 Rural Governments. [§ 84 

orate system by which counties are allowed to choose whether 
they will put into effect certain laws. Thus, counties may or 
may not tax themselves for railroads or other purposes, accord- 
ing as the legislature may direct ; in Kentucky some counties 
pass on the sale of liquor within their limits, many of them pro- 
hibiting it even in the regions of " moonshine " whiskey. 

The great advantage of the town over the county is that it 
has the machinery for an intelligent man-to-man discussion of 
public questions, and for their settlement by the immediate vote 
of an assembly. Nevertheless, in the Southern states there is 
always plenty of discussion of public issues wherever people 
congregate ; and public opinion is reflected through the county 
commissioners. 

84. Mixed County-Precinct and To'wnship-County 
Systems. 

Besides the town and the county government, there are two 
widely-diffused mixed systems, conveniently called by Professor 
Howard the "county- precinct" and " township-county." The 
first of these is but little removed from the county plan, the 
precincts being only electoral units or districts for the election 
of justices of the peace and constables. It generally precedes 
the township-county system, and is often a stage in the develop- 
ment of the latter. The so-called " townships " in California 
are of this type. 

Although the second system has been developed chiefly in 
the Mississippi Valley, and is the result of sectional compro- 
mise, the substance of the organization existed in colonial 
Pennsylvania, and its early introduction in the Northwest Terri- 
tory was largely due to the influence of that state. County 
government began in the Northwest Territory in 1788, and in 
1790 provision was made for the civil life of the "congres- 
sional" townships, which in 1802 were given a more popular 
organization. 

The system shows several types. In the simplest, such as 



§ 84j Mixed Systems. 1 77 

was adopted in the Northwest Territory, and now prevails in 
Pennsylvania, Ohio, Kansas, and elsewhere, there is no town- 
meeting, and the towns are not represented on the board of 
county commissioners ; they have, however, usually some power 
of self-taxation, and a body of elected ofificers, including one or 
more supervisors, nearly coinciding with the New England se- 
lectmen, a clerk, treasurer, assessor, and constables. Wherever 
New England people have settled in large numbers, as in 
Michigan and Northern Illinois, town-meetings exist and go 
beyond the election of officers to the management of local 
affairs. The relation of these townships to the county are of 
two kinds. In Minnesota they have no representation in the 
county board of commissioners, the commissioners being elected 
at large, as in the first type and county system, though some- 
times they are designated from particular districts ; but in 
Michigan, IlHnois, Wisconsin, and Nebraska — the Western 
states with the best local organization — the New York plan of 
a county board composed of the supervisors of the component 
townships is followed, a well-ordered executive legislature in 
which all parts of the county have membership. 

In all three of these types the towns are marked off by the 
county officials, and the town governments are subordinate to 
the county organization. The degree of dependence varies in 
the different types and in the different states, being greatest 
in the first form ; but in all of them the county is the judicial 
unit, and has general supervision over the administration of the 
townships; it levies taxes;. the county school-superintendent 
is one of the most important local officers. 

The county or county-precinct system, being simpler, more 
symmetrical, more easily managed, and therefore better adapted 
to thinly settled districts, was generally established first in the 
new settlements, especially wherever emigrants from the South- 
ern states have been predominant ; but a demand for town 
government was made by those who had emigrated from the 
states where it prevailed. In Michigan town organization pre- 



178 



Rural Governments. [§ 85 



ceded county organization, but in other states, where the set- 
tlers were not so homogeneous, the struggle has resulted in a 
compromise by which the counties are allowed to choose be- 
tween the county system and the mixed system. In 1847 such 
a choice was first offered in Illinois, and now out of 102 coun- 
ties about 90 have changed to the township-county system. 
The county option also exists in Missouri, Nebraska, and North 
Dakota. In Minnesota the option hes with the townships. 

85. Improvement of Rural Government. 

The foregoing sketch omits details which would show how 
varied are the possible combinations of rural government, — 
from Maine, in which the towns have nearly all the power, to 
Texas, in which there are practically no towns at all. On the 
whole, the town-meeting is losing its hold upon New England, 
except in exclusively agricultural towns; for it becomes clumsy 
as soon as the number of voters gets to be more than three 
or four hundred. The most remarkable New England towns 
are Brookhne, with a population of 20,000 and a valuation of 
^91,000,000, which still retains its town-meeting undisturbed; 
and New Haven, which has an ancient town and town-meeting 
right in the middle of the city. 

The most successful rural government is perhaps the town- 
ship-county system of New York and various Northwestern 
states, because it emphasizes the small subdivisions in which 
people can know and meet each other, and also provides for a 
representative county assembly. The main objection is that 
there are two sets of officers to do one job, and that the large 
board of county commissioners is unwieldy. The county-pre- 
cinct system is simpler, because most of the governing is done 
by a small board of county officers ; but the commissioners are 
not so easily watched and checked. 

The main improvement necessary in rural government is that 
the authorities of both towns and counties shall become more 
accustomed to appoint experts for special services. For in- 




" ^ \ V^T^ ^ 



''•^- ^J 

X 



M".^ 



/ 



ALLEGHENY COUNTY 



PITTSBURG, F%1 




MIDDLESEX COUNTY 



CAMBRIDGE, MASS. 



COUNTY BUILDINGS 



§85] Improvement. 179 

stance, road-making is an art for which a man ought to be spe- 
cially prepared ; and a road master or road commissioner ought 
to be a permanent officer, having the details of the service in his 
hands. Since roads are of consequence beyond the borders of 
the town, they ought everywhere to be a county affair. A cor- 
responding reform will be the provision of a proper state agency 
for supervising the local governments and keeping them up to 
their duties to the states. The accentuation of town govern- 
ment is important because it makes people take an interest in 
their own public officers. On the other hand, the townships 
are units too small for some of their usual duties, particularly 
the management of schools : the, good county systems have 
county superintendents, who visit the schools and keep them 
up to the mark ; but there is only one state in the Union in 
which the towns are obliged to provide expert superintendents. 
Upon the whole, rural government in the United States goes 
well : through the opportunity of choosing out of several es- 
tablished systems, people get what they think is best adapted to 
them. The county system breaks down wherever it is apphed 
in counties having large cities ; but the rural counties upon the 
whole have as good a government as the people desire. In 
some states, notably Massachusetts, county commissioners are 
habitually reelected, and often serve for many years ; in the 
Western states it is more common to change them frequently. 
In some states, the county officers have gone so far as to form 
an association to push their interests ; and in some cases the 
frequently-reelected commissioners have lost a sense of respon- 
sibility to the people who chose them. 



CHAPTER XI. 

CITY GOVERNMENTS. 

86. References. 

Bibliography: C. D. Wright, Practical Sociology (1900), 9, 66,72; 
Municipal Affairs, V, No. I (1901) ; Brookings and Ringwalt, Briefs for 
Debate (1896), Nos. 5, 19, 50; A. B. Hart, Manual (1908), §§ 107, 108, 
211, 224. See also the bibhographies in the treatises on Municipal 
Government. 

Principles of City Government: B. A. Hinsdale, Am. Govern- 
ment (rev. ed., 1895), 405-407; J. Bryce, Am. Co7nmonwealth (ed. 1901), 
I, chs. 1-lii; II, chs. Ixxxviii, Ixxxix; A. R. Conkling, City Goverjtment 
(4th ed., 1899) ; T. M. Cooley, Constitutional Law (3d ed., 1898), ch. 
xvii ; T. M. Cooley, Constitutional Lim^itations (6th ed., 1890), ch. viii ; 
J. F. Dillon, Municipal Corporations (4th ed., 1890) ; D. B. Eaton, Cov- 
er 7tment of Municipalities [x'SiO^ ; J. A. Y<^\x\S&, Municipal Administration 
(1901); F. J. Goodnow, Administrative Law (1905), Book IV, ch. iv ; 
F. J. Goodnow, Micnicipal Problems (1897); F. J. Goodnow, City Govern- 
ment (1904), chs. ii-vi, F. C. Howe, City the Hope of Democracy (1905), chs. 
X, xi ; J. A. Smith, Spirit of Am. Goi/ernment ( 1907), ch. x ; H. von Hoist, 
Constitutional Law (1887), §§ 99-102; D. F. Wilcox, Sttidy of City Gov- 
ernment (1897); G. E. Waring, in N. S. Shaler, United States (2 vols., 
1894), II, ch. v; monographs on city government in Johns Hopkins 
University Studies, III, Nos. 11-12 (1885); IV, No. 10 (1886); V, Nos. 
1-4 ( 1887) ; VII, Nos. 2-4 (1889) ; XIV, No. 2 (1896) ; H. C. Black, Consti- 
tutional Law (1897), ch. xvii. — Sources : Civil Service Record (1881-1891 ) ; 
Good Government (1892-1907); Municipal Affairs (1897-1902); Chicago 
Convention, Digest of City Chat'ters (1907). 

City Executive: J. T. Young, Liberty vs. Efficiency {Yale Review, 
VIII, 274-2S8, 1899) ; E. A. Greenlaw, Office of Mayor (Municipal Affairs, 
III, 33-60, 1899); F. J. Goodnow, City Government (1904), ch. viii; 
B. S. Coler, Municipal Government (1900) ; C. W. Eliot, American Con- 
tributions to Civilization (1897), No. 7 ; E. D. Durand, Council versus 
Mayor {Pol. Sci. Quar., XV, 426-451, 675-709, 1900) ; W. M. Ivins, 
Municipal Governtneftt, Ibid., II, 291-312, 1887) ! D. F. Wilcox, Study of 
City Govern7nent (1897), §§ 98-115; J. A. Fairlie, Municipal Administra. 
tion (1901), chs. xviii, xix ; D. B. Eaton, Government of Muncipalities 
(1899), chs. x, xiv. — Sources : Reports and inaugural addresses of 
Mayors; N. Matthews, City Governtnent of Boston (1895); J- Quincy> 

180 



§8;] Origin. i8i 

Message of 1899 (as retiring mayor of Boston); National Municipal 
League, annual proceedings; Nat. Conf. for Good City Gov., Proceeditigs, 
1898, pp. 71-80, 152-219; 1900, pp. 119-126, 136-146. 

City Councils : D. F. Wilcox, Study of City Government (1897), 143- 
179 ; J. A. Fairlie, Municipal Adtninistratioii (1901), ch. xvii ; D. B. Eaton, 
Government of Municipalities {1899), chs. x, xi ; J. F. Dillon, Municipal 
Corporations (4th ed., 1890), I, chs. x-xii; A. R. Conkling, City Govern- 
ment (4th ed., 1899), ch. iii; F. J. Goodnow, Municipal Problems (1897), 
ch. ix; F. J. Goodnow, City Government (1904), ch. vii. See also general 
references above; Nat. Conf. for Good City Gov., Proceedings, 1901, 
pp. 128-157. 

87. History of American City Governments. 

Cities and their problems are as old as civilized mankind. 
Ever since the dawn of history men have gathered together in 
w^alled enclosures; indeed, our word "town" means a settle- 
ment surrounded by a palisade. At the beginning of our col- 
onization there were many English cities founded on royal 
charter, most of which were represented in Pariiament ; and 
it was supposed that cities would speedily grow up in the colo- 
nies. Indeed, in the year 1641 a city charter, the first in 
English America, was issued to Agamenticus, Maine ; and in 
Virginia two of the rural counties to this day bear the names 
Elizabeth City and Charles City ; but even the largest places 
in New England all retained town government until after 1820. 
There were about twenty chartered boroughs and cities in colo- 
nial times, none of much importance except New York and 
Philadelphia. 

The development of city government in America practi- 
cally began about 1820. In the statistical publications of the 
United States government, a city is defined as an aggregation 
of 8,000 persons living in one territorial unit and under one 
local government. When the federal constitution went into 
effect in i 789, there were only six such cities. In the eleven 
decades since 1 790 the total population has increased from 
4,000,000 to 76,000,000, and the city population from 132,000 
to 25,000,000. There are now more than 10, 000 incorporated 
towns and cities, of which 546 have each more than 8,000 



I 9 2 City Governments. [§ 87 

inhabitants. The present New York City had in 1790 less 
than 50,000 people; it has increased seventy times, to about 
3,500,000. In 1810 there was not a single place of 100,000 
inhabitants ; now there are 38 such cities. The total city 
population in 1850 was under 3,000,000 ; in 1900 it was nearly 
25,000,000; in 1790 about one thirty-third of the people hved 
in cities, now nearly one third. 

We hardly realize how swift and how unique has been the 
increase of American cities. Nearly every European city of 
note was a large place four centuries ago ; in the United States, 
of the fifteen largest cities, only seven had any population 
before the Revolution, and the ten great cities of Chicago, 
St. Louis, Cleveland, Buffalo, San Francisco, Cincinnati, Pitts- 
burg, Detroit, Milwaukee, and Washington, taken together, had 
as late as 1840 only about 150,000 people. The cities are not 
only new on their ground, but they contain people most of 
whom come from outside the state, and many from outside the 
United States. At this moment, of the adults in the city of 
New York, 53 per cent are foreign-born. 

The older places all suffered from the attempt to keep on 
with forms of government long outgrown. Boston continued 
a town, until in 1822 it was absolutely necessary to give it a 
city charter. New York found repeated legislative enactments 
necessary ; its charter has been fundamentally revised no less 
than six times, and hundreds of single statutes have affected 
its government. 

The ancient and mediaeval idea of a city was that it ought to 
be a self-governed state ; but that conception has nowhere 
been realized, or indeed attempted, in America. Perhaps 
Rhode Island, with its commanding city of Providence, is the 
nearest approach. Most of our cities are imbedded in states 
having large rural populations ; and the legislatures have drawn 
up city charters, and are constantly tinkering with the city 
governments. 

After cities began to spring up, it was many years before 



§88] History. 183 

Americans faced the new problem. During the half century 
from 1789 to 1840, their attention went to the states and their 
constitutions ; then public interest went into the great struggle 
over slavery, culminating in the Civil War ; and it was not until 
about 187 s that the Americans finally woke up to the inefficiency 
of their city governments. In the last twenty-five years most 
of the cities have received new charters, and there is at present 
a greater interest than ever before in improving city govern- 
ment. People have also become more aroused in municipal 
elections : the choice of mayor of New York City comes second 
in popular interest only to the election of president of the 
United States. 

88. City Charters and City Functions. 

The outward semblance of American city government is very 
similar to that of the state governments. It is founded on 
a written charter corresponding to the state constitution ; the 
city mayor resembles the state governor; many cities have two 
legislative bodies, like the state legislature ; and there is a 
system of executive boards very much like those created for 
state purposes. This resemblance is no accident : city govern- 
ment is purposely restricted and balanced and assimilated to 
state government. 

In colonial times among the twenty or more borough or city 
charters, the most important were the Dongan New York 
charter (1686), and Penn's Philadelphia charters (1691, 1701). 
In Philadelphia, Annapolis, and Norfolk the city government 
filled its own vacancies, and thus got out of relation with public 
sentiment. 

Soon after the Revolution, the state governments began to 
grant municipal charters, — Charleston in 1783, New Haven 
and other New England places in 1784, Philadelphia in 1789 
(third charter), Baltimore in 1797. Probably, first and last, 
1,000 city charters have been framed. Most of them have been 
drawn up especially for the city concerned, sometimes by the 



1 84 City Governments. [§ 88 

preexisting city government, more often by a committee of 
the legislature. Public-spirited citizens sometimes draw up 
a charter, and by agitation attempt to secure its passage : the 
Municipal League, a national organization of those interested 
in the improvement of city government, has recently drafted a 
model charter, which has been substantially adopted in some 
places. 

City charters are frequently elaborate codes. For instance, 
a charter drawn up for the city of Minneapolis in 1898, by 
a special commission, contains 28 elaborate chapters and is 72 
pages long. The city charter of Greater New York, 750 pages 
long, was drawn up by a commission appointed in June, i8g6, 
which held public hearings and employed lawyers to help com- 
plete the draft; the commission reported in February, 1897, 
and soon after made public the text of the draft ; there was 
little opportunity for public opinion to affect the draft, and 
with modifications it was enacted by the legislature as a 
general statute. 

Another and better system that prevails in some of the West- 
ern states is to enact a general form of charter, applicable to a 
town or a village of a certain size which wants to become a city ; 
it goes through the necessary formalities, and begins its munici- 
pal life under this general charter act. This method avoids 
the pulling and tugging of local interests to get special clauses 
into a city charter ; and it also obviates the hurry and imper- 
fection of charters hastily drawn and enacted, perhaps with 
contradictory provisions. 

Charters are often, though not invariably, submitted to the 
people of a city for ratification. Besides a list of city officers 
and a careful enumeration of their duties, a charter or general 
organizing act invariably contains a statement of the local 
powers which may be exercised by the city. For instance, the 
Minneapolis draft of 1898 sets forth the subdivision into wards, 
the system of election and of appointment and removal of offi- 
cers, the manner in which legislative ordinances may be passed, 



§88] Charters and Functions. 185 

and enumerates 88 specific functions which may be exercised 
by the city council, ranging all the way from " licensing news- 
boys, bootblacks, fortune-tellers, clairvoyants, astrologers, and 
massage doctors," to incurring debts for parks ; and there are 
minute regulations as to making contracts and granting munici- 
pal franchises. The principal city functions are the police 
and fire service, water, public lighting, streets, schools, libraries 
(public and private), health, corrections and charities, parks, 
municipal franchises, and taxation and finance for carrying on 
these great purposes. 

It is a fundamental principle of American law that no grant 
of power to a pubHc corporation is irrevocable. Hence no 
legislature can give to any city authority which a subsequent 
legislature cannot wholly take away ; otherwise we should have 
the mediaeval spectacle of cities within a state and yet inde- 
pendent of it. 

The purpose of a charter or amendatory act is to determine 
how a municipahty shall govern itself. Legislatures go much 
farther, by ceaseless legislation directly affecting the relation of 
people to their city governments, and sometimes taking the 
government out of their hands. They do this in three ways : 
(i) By reducing or expanding the powers of cities, often for pri- 
vate or temporary ends. (2) By frequent and often causeless 
change of details. If a city, for instance, has a mayor with 
a term of three years, and a new charter is adopted with a term 
of two years, the mayor goes out of ofiice a year before he 
expects. (3) By outrageous denial of any right of municipal 
home rule, — as, for instance, by the Pennsylvania ''Ripper 
Bill" of 1901, under which the government of several cities, 
especially Pittsburg, was taken out of the hands of the people 
by endowing the governor with the right to appoint a " recorder " 
with the powers of the previous mayor, and the added power 
of dismissing other city officials. The result was the uprising 
of the people of Pittsburg, in the next municipal election, against 
what they thought was an unjustifiable deprivation of rights 



1 86 City Governments. [§89 

and a denial of self-government enjoyed by almost all other 
municipalities in Pennsylvania and elsewhere. 

89. City Government by State Legislation. 

Of all forms of American fundamental law, city charters 
are most subject to alteration. Though superior to all city 
ordinances, and unalterable by either the government or the 
people of a city, they are, in the eyes of the legislature, simply 
ordinary statutes, changeable at will, and actually changed in 
many different ways, (i) By making a new charter outright : 
New York City has had four since 1783. (2) By general stat- 
utes providing new duties for all local governments, — as, for in- 
stance, the Massachusetts law that every community shall furnish 
opportunity for a high-school education. (3) By special acts 
applying to particular cities. Between 1880 and 1889 there 
were 390 such indirect amendments to the charter of New York 
City. 

Under the best conditions, special legislation for cities com- 
plicates the law till no public officer knows just where he stands. 
In New York State, for instance, of 33 considerable cities, only 
four have the same charter or the same system of assessing 
taxes. The laws with regard to a particular city are confused, 
and the body of law affecting all cities is still more confused. 

A plausible remedy for these confusions is embodied in the 
New York constitution of 1894, — namely, that a special act 
affecting a city may be vetoed by the mayor of the city so as 
to call public attention to the bill, though subject to be passed 
over the veto by a simple majority of the two houses of the 
legislature. In practice a Republican legislature almost always 
overrides a Democratic mayor, and vice versa. Another remedy 
is that the legislature shall pay closer attention to the recom- 
mendations of the city governments, which constantly ask the 
legislature to pass legislation in their behalf. Many statutes 
are passed without the consent, or even against the protest, of 
the cities affected. For example, the Ohio legislature in 1888 



§89] State Control. 187 

compelled the city of Cleveland to tax itself about $300,000 
for the construction of an inartistic soldiers' monument. 

The regulating power of the states is also indirectly exercised 
in various ways, (i) By designation of city officials. For 
many years the mayor of New York City was appointed by the 
governor ; and in some states other city officials are still so 
appointed, although the practice is very unusual. 

(2) By assigning duties to city officials, outside their local 
functions. Many municipal officials are really also state officials 
exercising powers under the legislature, because the city service 
is also a part of the state service. The city clerks, for in- 
stance, constantly have duties of registration and record thrust 
upon them by the legislatures ; city tax-collectors also collect 
the state taxes, and must account for them ; city school authori- 
ties are bound to observe state laws as to the course of study, 
the length of the school year, the text-books to be used, and 
the examination of teachers ; the local police service is fre- 
quently used for the arrest of criminals against state laws. 

(3) The right to impose duties implies the right of the state 
to see that they are performed. Not only do the state courts, 
by mandamus and other proceedings, control city officials, but 
in some states, especially in New York, city officials, even 
elective, may be removed by the governor if they refuse to per- 
form their duties. The supervision of states over cities is as 
yet imperfectly worked out in the United States. A suggestion 
recently made is for a state municipal board, with the duty of 
watching over the municipalities and seeing that they comply 
with the laws. 

(4) Another method of controlling municipalities is through 
the creation of state instrumentalities for purely municipal 
service. The most frequent function selected for this control 
is the police : in Boston the pohce commissioners are appointed 
by the governor and are responsible to him, although the city 
must tax itself for the support of the police. The ostensible 
purpose of such commissions is to get the police out of politics ; 



1 88 City Governments. [§90 

sometimes, however, the system simply substitutes a different 
kind of politics. In New York, after various fluctuations, the 
police have been restored to the control of a commissioner 
appointed by the mayor. Again, the control of elections is so 
distinctly a state service that it is not remarkable that many 
city election boards derive their authority direct from the state. 
Commonly the people of the cities dishke this state supervision, 
because they feel it a reflection upon their capacity for self- 
government, and it is an inconvenience to subdivide local gov- 
ernment among various authorities. The tendency at present 
is to break up the state commissions, and to throw their func- 
tions upon city officials. 

(5) Some functions of cities and of rural governments are 
as a whole supervised or administered for the whole state by 
state boards. For instance, gas commissioners may pass upon 
the quality and price of gas in every city; state boards of 
health have powers of control over all the local boards ; 
about thirty of the cities and towns in the neighborhood of 
Boston have many common interests, and the state has created 
a "metropolitan" sewer commission, water board, and park 
commission. But side by side with the state system exist in 
most of the cities local sewer and park systems, with separate 
city boards. 

90. City Councils. 

Cities have no judicial system of their own ; the so-called 
municipal courts and city courts are simply local branches 
of the state courts. The other two departments of govern- 
ment are nominally separated from each other ; in practice, 
however, much of the city executive business is performed by 
committees of the council, a clumsy method which prevents 
rigid responsibility. The city legislative department is in 
most cities much weaker than the executive, for its field of 
authority is limited at best, and is constantly encroached on 
by the state legislature. 



§9°] Councils. 189 

Colonial city governments had usually a single council, part 
of the members of which were called aldermen, and performed 
special functions; yet by an amendment in 1796 to the third 
Philadelphia charter two separate councils were provided ; and 
the bicameral system speedily spread. In the Middle states 
this system is probably an imitation of federal and state 
government ; in New England, when a town was changed into 
a city, a board of aldermen was provided, with the previous 
executive powers of the selectmen, and in course of time 
became also the more important legislative body. Since 
about 1870, perhaps two thirds of the considerable cities have 
got back to a single legislative chamber, which is now required 
in all the cities of Ohio. 

The organization of local legislatures is very much like that 
of the state legislature : ordinarily each house, if there be two, 
elects its own president, who, like the speaker of the state 
legislature, appoints committees, and often practically controls 
all the proceedings. The lower house is considered a training- 
school for the upper chamber, which is commonly the least 
numerous body, is rated higher, and has larger functions : for 
instance, it often votes on nominations made by the mayor. 
The term of office is commonly one or two years, occasionally 
more ; and more than one or two reelections are not usual. 
In small places the city council may have not more than 1 2 
members; in Boston there are 75 councilmen and 13 alder- 
men. Small salaries are common ; and in New York the 
members of the board of aldermen have salaries of ^1,000 
per year. There are many petty privileges, such as theatre 
tickets, carriage hire, visits to other cities, etc. 

In almost every city the mayor, through the veto power, is 
a part of the legislature, and often presides over one or the 
other branch of the city government. As in the states, the 
veto may usually be overridden by a vote of from two thirds to 
four fifths: of 920 measures sent to Mayor Hewitt of New 
York in 1887, '"'s vetoed 825, of which only 48 were passed 
over his veto. In general the city legislatures frame a large 



190 City Governments. [§90 

amount of legislation on small matters. The body of ordi- 
nances is constantly swelling, and is from time to time codified 
into a statute-book : the revised ordinances for the city of 
Hartford for 1898 contains 21 chapters and occupies 141 
pages. Besides the ordinances, the city governments fre- 
quently pass resolutions on general political matters ; they 
often appoint committees to investigate executive officers ; 
and they are fond of sending committees about to other cities 
to examine the public service there, at the expense of the 
home taxpayer. 

The people of the cities are commonly not much interested 
in the action of their city councils. In a few cases the pro- 
ceedings of the city are reported verbatim and printed, but 
they do not appear in the newspapers of large circulation. 

In most cities there is little left for the city legislatures to 
do ; in New York City, for instance, the aldermen have almost 
no large power except to grant franchises. Bribery is not 
unknown in city councils, and sometimes money is directly 
applied on a large scale. In 1902, in St. Louis, ^160,000 
was deposited in a bank, subject to the joint control of the 
friends of a franchise, and of certain members of the city gov- 
ernment who undertook to get it through. The ordinance 
passed the council, but was vetoed by the mayor; where- 
upon the engineers of the scheme demanded that the money 
be surrendered to them. The original possessors resisted, and 
the matter finally got into the courts. 

Many men of high character serve on city councils. For 
instance, in Pittsburg, and in Chicago of late, a large majority 
of the council have been men of high public spirit ; but the 
labor is made unduly heavy by the executive committee work, 
and the opportunity for reputation is small. At present the 
city councils, from having been the centre and source_of city 
government, have become the least important branch, and 
perhaps the least esteemed. Various reasons are given for 
this unhappy state of things ; perhaps the most forcible is the 
feeling of the people of a city that they must appeal for good 



§9°] Councils. 191 

government, not to their city representatives, but to the state 
legislature. 

From the beginning, the city councils exercised large ex- 
ecutive functions, at first through the upper house, commonly 
called aldermen, and then by standing committees on execu- 
tive matters ; and to this day most of the city governments, 
both in their ordinary legislation and in school matters, keep 
up the system of executive committees, which have power to 
settle on executive policies and to give directions to executive 
officials. For instance, in many cities there is a finance com- 
mittee, without whose consent practically no appropriation can 
be made ; committees on parks, public buildings, schoolhouses, 
text-books, frequently control park commissions or school 
superintendents and principals. This confusion of execu- 
tive and legislative functions, although common in state legis- 
latures, is unfortunate ; for the city councils change rapidly, 
and hence members of committees have often little experi- 
ence in their fields. It is hard to fix responsibility on a 
committee of several members ; and some one member of the 
committee, often the clerk or the secretary, really settles many 
matters of importance, although he is in no official relation to 
the executive department. A very common method is for the 
members of a committee to parcel out appointments and duties 
geographically : a committee on teachers, for instance, agrees 
that each member shall have the patronage in a certain ward 
or district. 

While city councils have been grasping executive power, 
they have suffered from several encroachments upon their 
nominal legislative power. The most important are those 
of the school board and the board of estimate. In nearly all 
cities the school board is a separate local legislature, appointed 
by the mayor in a few cases, but almost invariably elected 
either by wards, or on the general ticket ; it is usually too nu- 
merous for very efficient action, and is possessed of almost 
complete power over teachers, courses of study, and discipline. 
in some cities the school board also builds the schoolhouses 



192 City Governments. [§91 

and levies a separate tax ; but a more common system is that 
appropriations shall pass through the hands of the regular city- 
government, which provides new buildings. 

In many cities, the councils have no longer control over 
taxes and no power to initiate expenditures ; in some cases 
they may amend a budget ; in others they can only reduce 
the estimates, they cannot increase them. Many of the large 
cities, including New York, Buffalo, New Haven, Minneapolis, 
Cleveland (till 1902), Toledo, and Albany, have a board of 
estimates, made up of executive, usually elective, officials, 
especially the mayor and comptroller. This non-legislative 
body actually exercises the most important of all legislative 
functions, — namely, the laying and expenditure of taxes. 
The present Greater New York charter has an ingenious 
system in which some of the executive officers have one vote 
on the board of apportionment, some have two, and some 
have three, according to their importance. Upon the whole, 
these special financial legislatures seem to work well, and they 
are likely to remain, although they manifest distrust of the 
ordinary elective council. 

91. The Mayor. 

As in the states, the municipal executive is divided into 
three parts : a single official, commonly called the mayor ; 
other executive chiefs, usually not appointed by the mayor ; 
and a force of executive subordinates. In the colonial charters 
no mayor was elected by popular vote : he was designated 
either by the governor or by self-perpetuating councils ; and 
the mayor of New York City was appointed by state author- 
ity until 182 1, when provision was made for the choice of 
mayor by popular vote, which is now practically the invariable 
system. 

Three quarters of a century ago people dreaded the estab- 
lishment of a one-man power, and hence the mayor was long 
inferior to the councils, (i) Until within twenty years the 



§9^] The Mayor. 193 

mayor has almost never had the power of appointing the 
principal executive officers of the city. (2) His power to ap- 
point lesser officers has almost always been subject to confirma- 
tion by aldermen or a council. (3) Large areas of executive 
power have been by the charter withheld from the mayor 
and retained by committees of the council, or given to separate 
executive boards. (4) In many cities, the early mayor had 
no veto power on ordinances passed by the council. Without 
a thorough appointing power, without a removal power, with- 
out adequate administrative powers, the mayor was sometimes 
a figurehead, more often an official having responsibility for 
acts which he could not control. 

About 1850 began the more systematic organization of city 
government, and in various charters the mayor received greater 
powers, including the qualified right to remove. By some of 
the most recent charters, — as, for instance, that of Boston, — 
the mayor may remove appointive officers without the consent 
of the council, and is thus enabled to compel obedience to his 
directions on pain of dismissal. In a few states, notably New 
York, the mayor may be removed by the governor. The ten- 
dency of new charters is now to strengthen the power of the 
mayor, by giving him the appointment of more officials (in 
some cities, not subject to ratification), and by giving him 
a larger removal power. Such charters were obtained in 
Richmond in 1870, in New York in 1870 and 1873, i'^ 
Pennsylvania in 1873, by a general municipal statute for the 
organization of all cities of a certain class within the com- 
monwealth. Another improvement has been to extend the 
mayor's term, which is now two years in Boston, four years in 
Buffalo, and three years in Cincinnati. 

By this gradual process the mayor has been brought near to 
the governor in relative power ; but, like the governor, he still 
needs authority to appoint all the heads of departments, after 
the example of the national government. In the model pro- 
gramme of the National Municipal League of 1899, it is 
proposed that the mayor shall have the sole power of 

13 



1 94 City Governments. [§ 92 

appointing and removing all executive officers except the 
comptroller. In the former Brooklyn charter, this system 
was extended to broad limits. In 1891 the Cleveland public 
executive service was divided into six departments, at the head 
of each of which was a "director" appointed by the mayor 
with the approval of the council, and removable by the mayor ; 
subordinate appointments were made by the heads of depart- 
ments. This so-called " federal " plan has also been followed 
substantially in the charter of Greater New York ; of course it 
so concentrates power in the hands of the mayor as to call 
public attention to his acts, and he is justly held responsible 
for the acts of all his subordinates. 

This system of " responsible mayoralty," especially if it 
includes removal for cause which seems good to him, un- 
doubtedly tends to increase interest in the election of the 
mayor who exercises such large powers. It also greatly 
increases the efficiency of the executive, because the mayor 
can keep the various departments in line on carrying out a 
policy. Furthermore, it tends to check excesses on the part 
of the council, since the mayor who has the will has also the 
power, not only to veto measures, but by his conspicuous 
position to direct public attention against what he believes 
to be unwise. The power for harm of a responsible mayor, 
if public sentiment is apathetic, was strikingly shown in 1902 
in the performances of the city government of Minneapolis, 
where the mayor sold permits to evade the law, and had to 
be driven out by prosecution in the courts. 

As head of the city, the mayor has important social functions : 
he welcomes distinguished visitors, represents the dignity of the 
city, and often takes part in great public occasions outside of 
his official duties. 

92. City Departments. 

The city executive service is necessarily subdivided into 
many departments, most of the heads of which are elected, 
and often for different terms and at different times from the 



§92] Departments. 195 

mayor. In the earlier years of American municipal experi- 
ence, sucli officials were commonly chosen by the city council, 
as some are still. It was thought a promising reform when, 
about 1850, the large cities began to elect their own munici- 
pal officers. 

The subdivision is not unlike that in the states. There is 
always one financial officer, and often several : thus, in the old 
Brooklyn charter there were separate departments of finance, 
audit, assessment, collection, arrears, and treasury. The city 
treasurer is often one of the most important of these officers, 
and in small cities combines most of the executive financial 
functions. Commonly there is another officer, the auditor or 
comptroller, who is practically the city bookkeeper; and, as 
he decides what payments are legal, his position is one of great 
importance. There is usually a city solicitor, or corporation 
counsel, who acts as a kind of attorney-general for the city. 
One of the most important departments is the police, usually 
headed by a commissioner, sometimes by a board of commis- 
sioners. Next in significance is the fire department, with a 
commission or a commissioner. The department of education 
is commonly quite separated from the rest of the city officers. 
Public works is an important executive department, sometimes 
subdivided into a building and a street department, with a 
street commissioner. The department of health is usually 
under the charge of a board. Street-cleaning is sometimes a 
separate department from either the board of health or the 
street department. In cities which have their own water or 
lighting systems, a water or a gas commission is common. In 
cities like New York, Philadelphia, and Baltimore, the county 
officers, sheriff, prosecuting attorney, treasurer, and so on, are 
in effect a part of the city system : the famous Tweed Ring of 
New York, in 1872, was made up of county officials. 

Except where there is a cabinet system of officers mostly 
appointed by the mayor, there can be little direct relation 
between departments. Sometimes the mayor calls the heads 
together at a daily or a weekly meeting, so that each may 



196 City Governments. [§93 

know what the other is doing ; but, unless removable by the 
mayor, the heads of departments are very likely to work against 
him. 

In general the salaries of city executive officials are un- 
reasonably small, much lower than those of the servants of 
great corporations who perform similar functions. The mayor 
of Greater New York receives ^15,000 a year; the mayor of 
Boston, ^10,000; the mayor of Chicago, ;^ 10,000. The cham- 
berlain of New York (the city treasurer) under the old system 
had ^25,000 a year. In smaller cities such officers as the 
street commissioner, city treasurer, and city engineer receive 
from $300 to $3,000 a year, in almost all cases by an outright 
salary, for fees are uncommon. Some cities of the middle class 
pay more adequate salaries : the city treasurer of Indianapolis 
receives $8,500, while the treasurer of Springfield, Illinois, 
receives but $1,200. 

93. City Officials and Employees. 

Below the heads of departments comes a little army of sub- 
ordinate officers of every kind, down to the gang bosses for 
laborers. Where politics are highly developed, many such 
offices are created to furnish support to the district leaders. 
Most of the subordinates are appointed by the heads of their 
offices, and hence are subject to removal whenever there is a 
change, by election or by political revolution, among their 
chiefs ; therefore in later and better charters the minor officers 
are often appointed by the mayor. These positions are very 
eagerly sought, especially when protected by the civil service 
system. 

In some departments, the number of people holding respon- 
sible positions is considerable. In all the financial offices, 
— treasurer's, tax-collector's, auditor's, comptroller's, and the 
like, — there must be competent heads of bureaus, capable 
of directing a body of clerks ; in the offices of public works, 
there must be trained engineers and surveyors. Throughout, 
there must be some clerks who know the routine, or else the 





•;;: iiiif^^ 1' 






i I'i'iil ill 



1. CAMBRIDGE, MASS. 



2. PHILADbLF'HlA 




NEW ORLEANS 



CITY BUILDINGS 



LOUISIANA 



§93] Officials and Employees. 197 

machinery of business would stop altogether ; hence there 
will always be found a small number of officials retained from 
year to year. In Cambridge, Massachusetts, the present city 
treasurer, chosen by the city council, has been reelected 
twenty-four times. 

Below the responsible men who exercise discretion, every 
large city has two large bodies of subordinates who take orders 
but do not give them. First in order are the policemen, the 
only city servants, except the fire department, with something 
like a military organization. Since the lives and property of 
the people depend upon the faithfulness of the police, in most 
cities they have something approaching a permanent tenure : 
in New York, for instance, they can be removed only for cause. 
The firemen, also, employed in a skilled and hazardous calling, 
are well paid, and in most cities have long tenure. For this 
very reason there is a tendency for policemen and firemen to 
organize and insist on a raising of their pay. The ordinary 
pay of the New York police force is $1,400 a year, with a 
retiring allowance. 

Next come the laborers on street, sewer, and water con- 
struction, and on the great public buildings. In most cities 
they have a precarious employment, since getting city employ- 
ment depends not on capacity but on a recommendation by a 
politician. Even in the few cities where civil service rules 
prevail, it is hard to provide a proper test for laborers. City 
work usually costs more than private contract, because it takes 
more men to accomplish the same job, and they usually 
receive high wages. The labor organizations in general fa- 
vor some method of selection of public servants which shall 
not depend upon the good will of politicians ; and experience 
shows that it is possible to select unskilled workmen, not by 
any formal examination, yet without the favoritism and lack 
of responsibility which go with political appointment. 



I9§ City Governments* [§94 



94. Civil Service Reform in Cities. 

In view of the large number of minor employees, the appli- 
cation of the principles of civil service reform to cities is one of 
the most promising improvements now proposed. So far, only 
a small number of cities have been brought within the system. 
By the constitution of 1894 of New York, civil service reform 
must be applied to all the cities within the state ; by a statute 
of Massachusetts (1885) it may be applied to any city which so 
votes, and most of the Massachusetts cities have accepted the 
act. It has also been applied, since 1895, to such cities of 
Illinois as by popular vote might desire it; the city of Chicago 
by a large popular majority at once accepted it. 

The general principles of the reform are as follows: (i) 
Candidates must pass examinations, " public, competitive, and 
free to all citizens of the United States" ; only through such 
examinations can people enter the city service. (2) Ap- 
pointments are made provisionally : the head of an office may 
refuse to appoint at the end of a short period of probation, if 
he is not satisfied. (3) Promotions are to be made from one 
grade to another, on the basis of ascertained merit, seniority 
in service, and examination. (4) No person may solicit 
political contributions from any city officer or in any city 
office. 

These acts are sometimes disregarded outright by the 
appointment or promotion of persons who have not been ex- 
amined ; but there are civil service commissions, whose busi- 
ness and whose interest it is to uphold the law. The law is 
sometimes lamed, however, by legislative or executive excep- 
tions, sometimes hundreds in number ; and rebellious heads of 
offices apply to the courts to delay the effect of the law, and 
attack it in its details. Perhaps the most effective opposition 
to the law is a constant current of contemptuous criticism in 
the press, and often in pubhc speeches. The favorite charge 
is that the examinations are not practical, — a charge easily 



§94] Civil Service Reform. 199 

disposed of by reading the published papers set for the 
different kinds of service. 

The mainstay of the merit system is that in practice a better 
grade of man is obtained for clerkships and similar tasks than 
by political appointment. Among skilled labourers, the likeli- 
hood is greater that the men appointed will actually be good 
workmen ; and the city officials, who are relieved from the 
pressure of appointing political friends to office, have more 
time to devote to their regular duties. 

This whole system of civil service reform is necessarily lim- 
ited by the power to remove for the good of the service. 
Wherever a responsible mayoralty has been estabhshed, he 
must have the power to remove heads of departments, for 
otherwise there could be no administrative unity. It is like- 
wise necessary that the heads of departments shall have power 
to remove their subordinates, not only for peculation or positive 
disobedience, but also for inefficiency. If, however, to fill the 
vacancy they must accept the candidate shown by the civil 
service examination to have the best rating, there is no longer 
the temptation to remove simply because somebody else wants 
the office ; and hence the merit system of appointments to a 
large degree prevents removals, and thereby encourages men 
in office to do their best. 



CHAPTER XII. 

PROBLEMS OF CITY GOVERNMENT. 

95. References. 

Bibliography : Municipal Affairs^ V, No. i (1901) (the best thing of 
the kind) ; A. B. Hart, Manual (1908), §§ 107, 108, 211 ; C. D. Wright, 
Practical Sociology {Am. Citizen Series, 1900), §§ 66, 72; Brookings and 
Ringwalt, Briefs for Debate (1896), Nos. 26, 28. 

City Population: E. J. James, Growth of Great Cities (Am. Acad. 
Pol. Sci., Annals, XIII, 1-30, 1899); A. B. YidiXi, Practical Essays (1893), 
No. 8; C. D. Wright, Practical Sociology (Am. Citizen Series, 1900), 
chs. viii, ix; F. C. Howe, City the Hope of Democracy (1905), chs. xix, xx; 
D. F. Wilcox, Am. City (1904), chs. i, iv; A. F. Weber, Growth of Cities 
{Mtmicipal Affairs, V, 367-375, X901). — Sources: U. S. Twelfth Census, 
Report on Population (2 vols., 1901-1902) ; U. S. Twelfth Census, Bulletins, 
Nos. 62, 65, 70, 149. 

Effect of Foreigners on City Government : R. Mayo-Smith, 
in Am. Statistical Assoc, Publications, n. s. Ill, 304—320,429-449 (1893) ; 
R. Mayo-Smith, Assimilation of Nationalities [Pol. Sci. Quar., IX, 426- 
444, 649-670, 1894) ; R. Mayo-vSmith, T/ieoiy of Mixture of Races ( Yale 
Rev., Ill, 166-186, 1894) ; E. T. Devine, Shiftless Population (Am. Acad. 
VoX. Sci., Annals, X, 149-164, 1897); C. W. Eliot, Am. Contributions to 
Civilization (1897), No. 7; J. R. Commons, Races and Immigratits (1907), 
ch. vii. — Sources: Municipal Affairs (1897-1902) ; J. A. '^x\s,. How the 
Other Half Lives (1890) ; J. A. Riis, Making of an American (1901) ; 
F. L. Dingley, European Emigration (United States, Special Consular 
Reports, II, 211-332, 1890). 

Remedies : Report of the Tilden Commission, in Municipal Affairs, 
III, 434-454 (1899) ; S. Low, Problems of Municipal Government (1887) ; 
N. Matthews, City G over fiment of Boston (1895), '^7A~'^^S'' T- A. Fairlie, 
Municipal Administration (1901), ch. xx; National Municipal League, 
Municipal Program (1900); E. L. Godkin, Key to Municipal Reform 
(North Am. Rev., CLI, 422-431, 1890) ; A. K. Fiske, Remedies for Muni' 

200 



§ 96] Urban Residents. 20 1 

cipal Misgovernment {Forum, III, 170-177, 1887) ; A,, R. Conkling, City 
Government (4th ed., 1899), ch. xix; F. C. Howe, City the Hope of Dem- 
ocracy (igo$),zh.. viii; S. F. Wilcox Am. City (1904), ch. xi; L. Steffens, 
Shame of the Cities (igo4) ; H. D. Baldwin, Municipal Problems {Munici- 
pal Affairs, III, 1-17, 1899) ; M. Storey, Government of Cities (Nat. 
Civil Service Reform League, Proceedings, 1891, pp. 47-67) ; W. Gladden, 
Social Facts and Forces (1897), ch. v; St. C. McKelway, Modern Munici- 
pal Reform {fournal of Social Science, 1896, No. 34, pp. 1 26-139) ; T. N. 
Hart and others. How to huprove Municipal Government {North Am. Rev., 
CLIII, 580-593, 1891) ; L. S. Rowe, Municipal Government as it should 
he (Nat. Conf. for Good City Gov., Proceedings, 1894, pp. 111-122) ; E. P. 
Oberholtzer, //(3;«,?/?z</^(Am.Acad. Pol. Sci., Annalslll, 736-763, 1893). 



96. Urban Residents. 

What are the real difficulties of American cities, and how 
shall they be remedied? We may learn much from our own 
experience, and also from the solutions found in other coun- 
tries, especially in England and the English colonies, which 
have cheaper and more effective municipal governments than 
ours. 

The first difficulty in America is the immense city popula- 
tion, and the massing of the great cities of America on the 
Atlantic coast, the Great Lakes, and the Ohio and Mississippi 
rivers, with potentialities on the Gulf and Pacific coasts. 
Counting a city as an aggregate population of 8,000 or more, 
the 6 "cities" of 1790 had 132,000 people, or about one 
thirty-third of the population ; the 546 cities in 1900 had 
25,000,000 population, about one third of the whole popula- 
tion ; and in New Jersey three fourths of all the people five in 
cities. The largest city in the United States in 1790 was 
Philadelphia, with 28,500 people, and the largest city in 1900 
was Greater New York, with 3,437,000. In New England 
and the Middle states alone, about 14,000,000 people live in 
cities, and over 9,000,000 more in the interior states, from the 
Ohio to the Dakotas and Kansas ; while in all the Southern 
and Southwestern states there are not 4,000,000. In twenty 
years Chicago has increased from 500,000 to 1,700,000. 



202 City Problems. [§96 

By the census of 1900, the twenty-five largest American 
cities in their order were : — 

New York 3,437,202 Milwaukee 285,315 

Chicago 1,698,575 Washington 278,718 

Philadelphia .... 1,293,697 Newark 246,070 

St. Louis 575-238 Jersey City 206,433 

Boston 560,892 Louisville 204,731 

Baltimore 508,957 Minneapolis 202,718 

Cleveland 381,768 Providence i75>597 

Buffalo 352,387 Indianapolis 169,164 

San Francisco .... 342,782 Kansas City 163,752 

Cincinnati 325,902 St. Paul 163,065 

Pittsburg 321,616 Rochester 162,608 

New Orleans .... 287,104 Denver I33>S59 

Detroit 285,704 

The rapid growth of great cities, especially of Philadelphia, 
Boston, and New York, has in part come about through the 
incorporation of former separate municipalities : Thus Man- 
hattan borough in New York, in the ten years from 1890 to 
1900, increased only about 400,000; but during that period 
there was added nearly 2,000,000 of population from Brooklyn 
and the smaller boroughs of Richmond and Queens. This 
process is now about ended : Boston is the only large city 
which has adjacent to it a considerable urban region ; and at 
present its neighbors show no tendency to political union. 
The great centres of population in the United States are now 
well established, and most of them grew out of their relation 
to transportation : Boston, Providence, New York, Philadel- 
phia, Baltimore, Charleston, New Orleans, Galveston, San 
Francisco, are great shipping ports for distribution inland ; 
Chicago, Duluth and Superior, St. Paul and Minneapolis, 
St. Louis, Cleveland, Buffalo, Pittsburg, Detroit, Milwaukee, 
Cincinnati, are on watercourses at convenient points for ship- 
ment. A few other cities, such as Columbus, Indianapolis, 
and Kansas City, have been created chiefly by the concentra- 
tion of railroads ; but it is altogether likely that all the great 
American cities of the future are already founded. 



§97] Distribution of Population. 203 

97. Distribution of Population \vithin Cities. 

Within the cities the population is very unequally distrib- 
uted : for instance, in the areas of Chicago, New York, and 
Boston are large tracts of farming country still actually tilled, 
and also some of the densest centres of population in the 
world. The main problem in the distribution of people within 
a city is the relation of the business area to fhe residence area. 
Most cities have regions (usually on a water front) so far given 
up to the business of mercantile transportation and manufac- 
turing that at night they are almost deserted ; other parts of 
the city are almost free from business and constitute the 
homes, usually in two settlements, — a so-called "residence" 
section inhabited by the well-to-do, and a poor quarter often 
degenerating into slums. 

Until about ten years ago the residence quarter stood near 
the business section, so that business or professional men could 
live not too far from their daily duties. The introduction of 
the electric car has caused a great difference, because it is now 
as easy and almost as quick to travel two miles as half a mile ; 
hence the residence section tends to move far out, where the 
circle is bigger, and the values of intermediate property have 
been much diminished. The shifting of the residence quarter 
leaves many vacant lots, so that the American city is much 
less neatly and compactly built than the foreign city. On the 
other hand, except in New York, Philadelphia, and the heart 
of Boston and Baltimore, well-to-do people prefer detached 
houses instead of blocks of buildings. During the last twenty- 
five years the European system of flats has become frequent 
in cities, large and small ; it has the advantage of ease and 
simplicity of housekeeping, but deprives the occupants of 
separate pieces of ground which they may use as they like. 

The poor section of an American city is always squalid : 
the so-called "tenement-houses," in which families occupy 
suites of a few rooms, or even single rooms, always tend to 
depreciate ; and both rigorous statutes and honest administra- 



264 City Problems. [§ g'l 

tion are necessary to prevent unhealthy and immoral crowd- 
ing. In some foreign cities, municipalities construct proper 
buildings for the poor; Naples has spent about ^20,000,000 
for this purpose, and in London large sums are going into new- 
lodgings. The farthest point reached in America is legislation 
for pulling down the worst buildings, and leaving sites vacant 
for breathing-spaces. One reason for the crowding in cities is 
the presence of large numbers of foreigners, accustomed at 
home to live in close quarters. In many cities there are 
special foreign quarters, — an Italian section, a Russian-Jewish 
region, a Bohemian quarter, a Hungarian settlement. In 
such streets one might imagine one's self in the heart of a 
foreign city. 

The numbers and the races of foreigners differ much from 
city to city. Many Irish are settled in the large cities, espe- 
cially on the coast ; the Germans have been distributed 
through ports having direct steamer lines to Germany, partic- 
ularly New York, Philadelphia, and Baltimore, and also through 
most of the great interior cities ; the Scandinavians have pre- 
ferred the Northwestern country and the cities within it ; the 
Russian Jews have settled by preference in large Eastern cities ; 
the Italians have taken up small lines of business, principally in 
New York and Boston ; the French are very few outside the 
large Atlantic coast cities ; the Greeks have absorbed the fruit 
business in most cities. 

It is a great mistake to suppose that as a rule foreign-born 
citizens are less interested in good city government than 
natives. Some of the worst-governed cities have the smallest 
foreign elements ; and in the great communities of Chicago 
and New York, where nearly three adult men out of five are 
foreign, there is a keen interest in local government, and con- 
ditions are improving. The great trouble that arises from 
foreigners is the ease of rolling up a German or Irish or 
Scandinavian vote, and the difficulty of adapting people to 
new conditions of life. No wonder it takes time to arrive at 
a sense of personal responsibility for good city government 



§ 9^] Transportation. 205 

among people who are living in what is to them a foreign 
country, who have torn themselves up by the roots from the 
land of their fathers, and who do not see all native Americans 
on the side of public righteousness. 

Americans-born are also a changeful folk. Many country 
homesteads have been occupied by members of the same 
family for a century or two, but not one man or woman in a 
hundred in the city lives in the house in which he was born. 
Neighborhoods change ; one set of people moves out, another 
set moves in ; and it is hard to plant the feeling of fond- 
ness for one's city, of pride in its beauty and in its good 
government. 

Some foreign cities, particularly in England, have hundreds 
of absolutely houseless people, who may be seen at night 
sleeping on park benches and under dry arches of bridges ; in 
American cities such persons are few, for, though tramps mov- 
ing from place to place have often no lodging-place, in most 
cities the destitute are received in rude lodgings at police 
station-houses. In England no person can vote who has not 
a fixed residence of some kind ; in the United States tramps 
and outcasts, who really have no continued relation to a city, 
are sometimes allowed to register from some place where they 
occasionally spend the night, and to vote. 

98. Problems of Transportation. 

The irregular distribution of the population of our cities 
makes of great importance the system of transporting urban 
and suburban passengers. The most obvious method was by 
vehicles running through the ordinary streets. Such omnibuses 
or stage lines have nearly ceased to exist, though there is still 
a line on Fifth Avenue in New York City. Next came the 
horse-cars, first successfully introduced in 1845, when people 
were so glad to have a convenient method of transportation 
that they gave to the companies who built the lines almost 
any privileges asked. As population increased, such privileges 
became valuable, sometimes enormously valuable. 



2o6 City Problems. [§ 98 

Then in a few communities arose the system of elevated 
railroads, which could handle passengers much more quickly 
because they did not run into or across streets at grade. Such 
systems exist in Berlin, Paris, and London ; but New York, 
Chicago, and Boston are the only American cities in which 
they have been constructed. The next step was the introduc- 
tion of the electric cars, about 1890. The advantages of this 
system are that it does not require stabling of horses, and 
hence can be operated with much less real estate ; that the 
power is easily distributed and can be quickly increased or 
diminished ; and that larger and more commodious cars can 
easily be run at higher speed than is possible with horse trac- 
tion. The trolley lines have driven the horse-cars almost 
entirely off the city streets. Most of the trolley lines have 
an overhead wire ; in New York City, however, the roads 
have been compelled to put their electric supply in an under- 
ground conduit. 

The original horse-railroads were separate short lines, but 
they have been gradually gathered together in larger companies 
serving particular districts. Under the trolley system there 
has been still greater consolidation, till in cities like Detroit, 
Richmond, and Boston the whole service is performed by a 
single company. The number of passengers is prodigious : 
in New York the various lines, surface and overhead, handle 
865,000,000 passengers a year; in Boston the Elevated Rail- 
road Company, which also owns the surface lines, handles 
214,000,000. 

The newest, and in many ways the most convenient, traction 
system is that of underground railroads. London has had one 
since about i860; Budapest and Paris have them; but the 
first American city to try the system was Boston, which in 
1 895-1 898 built a subway about a mile long, and is now con- 
structing sub-marine tunnels, and is about to build a second 
subway. New York is now constructing a splendid system of 
subways aggregating twenty-one miles, to cost ^35,000,000 ; 
and other cities are likely to take up the same plan, which is 



§ pS] Transportation. 207 

not affected by weather, is entirely out of the way, and does 
not disfigure the streets. 

The handling of city passengers causes various complications 
with the city governments. In the first place, many street 
railroad companies have received perpetual concessions, — 
that is, rights to lay permanent rails for private gain in streets 
which are the property of the city. Such concessions are now 
counted so valuable that in the state of New York the consti- 
tution forbids any grant lasting more than twenty-five years. 
Where concessions run out and have to be renewed, the great 
companies are compelled to pay for the paving of a part or the 
whole of a street, or to pay a fixed license fee per car, or to 
pay a certain part of the gross receipts for the year. Even 
where companies have perpetual concessions, it has in several 
states been found possible to tax the value of their franchises, 
— that is, to compel them to make some return for their 
enormous privileges. 

The physical task of taking care of the throngs of people is 
a serious question. In most cities there is a system of free 
transfers, usually at the centre of the city, so that, starting 
from one suburb, one may often travel for a single fare, five, 
ten, or fifteen miles to another suburb at the extremity of the 
city ; and the city governments are always pressing the railroad 
companies to increase transfers. The almost universal fare 
throughout the United States is five cents for each passenger, 
no matter what the distance travelled. On foreign lines it is 
very common to have a system of coupons, by which a man 
pays in proportion to the distance, the lowest fare being about 
one cent. On most European lines no passengers will be re- 
ceived unless there are places for them ; in the United States, 
during rush hours, cars commonly have as many people stand- 
ing as sitting. 



2o8 City Problems. [§ 99 

99. Political and Party Organization in Cities. 

The suffrage in American cities is obtainable by all adult 
men not intellectually or morally incompetent ; only in Provi- 
dence there is a special property qualification for municipal 
voting, and in some other cities the same poll-tax qualification 
as in other parts of the state. It is often urged that the cities 
would be better governed if only actual owners of real estate, 
or of personal property of some consequence, should be allowed 
to vote. The experience under the old system, however, was 
that property- owners have no more to gain from good govern- 
ment than the moneyless, and are no more likely to keep up a 
good and economical government. On the other hand, a 
deprivation of the suffrage would create a discontented class. 

It might naturally be thought that, in organizing parties in 
cities, people would group themselves on local questions which 
are of great moment, such as the management of schools, 
franchises to traction corporations, increase of taxes or of debt ; 
but, as has been shown in discussing state politics, the actual 
division of parties is almost invariably on national issues. The 
inevitable purpose of city political parties is not to furnish a 
good local government, but to keep up political organizations 
and to get out the vote for national and state elections. So 
far has this gone, that in various states the main political par- 
ties are recognized by law as entitled to membership on 
municipal boards of police or elections. 

This division of the voters of a city on questions which do 
not immediately affect municipal affairs is one of the most 
serious defects of American city government, (i) It prevents 
people from expressing an opinion on vital issues : if they want 
new waterworks, it is not Democratic or Republican water- 
works, but waterworks which will squirt ; and the introduction 
of party issues often prevents getting at local questions of large 
importance. (2) A good city official cannot expect reelection 
unless his party remains in power ; and even his renomination 
depends, not upon the faithful performance of his duties, but 



§ 99] Political Organization. 209 

upon his party loyalty. (3) The system tends directly to boss 
rule ; for the successful municipal chieftain is he who can get 
out the. most votes in a state or a national election. He there- 
fore is allowed to make up a municipal ticket which will help 
him hold the vote, and to that end he may control the distri- 
bution of city offices. It means also that faithful party men 
are likely to accept the stamp of the local convention or boss 
in municipal elections, and to vote for the regular party ticket 
even though it has bad men upon it. 

A most serious difficulty in securing non-partisan govern- 
ment is that the city officials are called upon to execute state 
laws which are really political, — such as the management of 
caucuses and elections, and the enforcement of liquor laws and 
other measures which apply to the whole state. If there were 
a proper system of state supervision and enforcement of laws, 
it would not seem so important to elect city officials who are 
in sympathy with the politics of those who pass the laws. 

The evils of political parties in the cities are perhaps some- 
what exaggerated in the public mind. In order to carry party 
elections, the managers are often compelled to put up men of 
character for municipal office ; and, if there be a local issue in 
which the people are deeply interested, they will find a way of 
expressing opinion by indirect pressure upon the city govern- 
ment, or by the wholesome process of withholding their votes 
and preventing a party majority. In many cities, private 
organizations have proved a most effective and influential 
means of directing public attention to the real municipal issues. 
Watch and ward societies, good government clubs, societies 
for the prevention of vice, and the like, keep watch over the 
administration of the city, and secure evidence for the con- 
viction of evil-doers in or out of office. Such organizations 
concentrate public attention on municipal problems, and 
against individual officials who have failed in their trust. 

Another form of relief from over-partisanship is the estab- 
lishment of local third parties called by various names, — "non- 
partisans," "reform party," '-'citizens' union," and so on, — 

14 



2IO City Problems. [§ loo 

and frequently engineered by large committees of eminent citi- 
zens called " committees of seventy," " committees of one hun- 
dred," and the like. The ever-present difficulty with such 
organizations is that they have to fight all the regular parties at 
once, and that it is hard to keep them together if they lose 
elections. In a city where a large majority of the voters are 
Republicans, the Republican organization will be kept going 
from year to year so as to hold the state vote. In a city where 
a majority of the voters are willing to elect a non-partisan can- 
didate, a citizens' movement may die out because there are 
not enough people ready to do the hard work of organization 
ana getting out the vote. Nevertheless, the tendency in great 
cities at present is distinctly toward ignoring party lines on 
questions of municipal administration, while adhering to them 
on state and national issues. 

100. Essential Defects of City Government. 

All writers and observers see great defects in American city 
government. Many of them arise from human nature, or from 
the conditions of city existence, and cannot be removed ; a 
larger group are not inherent in circumstance, and by intelli- 
gence and public spirit ought to be overcome. 

Among the inherent defects is the rapid change in the 
make up of the cities. Where population is increasing with 
leaps and bounds, no city gov^ernment makes sufficient pro- 
vision for the future. For instance, had the people of the 
great cities fifty years ago foreseen the present use of pipes, 
they would have prevented the intolerable digging up of the 
streets by providing subways into which new pipes could be 
introduced as needed. Hardly a city in the country makes 
provision in advance for the growth of the school population, 
and hence the pitiful spectacle of thousands of children in 
some cities turned away on the day of the opening of school, 
because there is not room for them. 

The shifting of population to and fro, the rise and some- 
times the decay of suburbs, necessarily cause wastefulness in 



§ loo] Defects. 211 

the expenditure of public money. Tlie movement of people 
from country to town, from town to city, from city to large 
city, from large city to another large city, prevents the forma- 
tion of a civic pride, which must be the basis of good govern- 
ment. The large amount of city business, the great problem 
of transporting literally hundreds of thousands of people to and 
from their avocations, the question of proper terminal facilities 
for steam-railroads, — these are difficulties which cannot be 
obviated. Furthermore, the division of powers between the 
nation, state, and cities, while salutary, tends to sacrifice the 
interests of the city to those of the state. 

(i) Of the non-inherent difficulties, first in importance is 
the confusion of the fundamental laws for the cities. Many 
city charters are not well balanced or adjusted, because drafted 
by men who have had small experience in city government. 
Of late there is some improvement ; for, when a city needs a 
charter, its existing government often insists on being heard, 
and demands that its experience be used in forming the new 
government. But the constant tinkering of the charters tends 
to destroy their unity ; and, while the charter as a whole is 
often submitted to popular vote, small amendatory acts almost 
never have that guaranty. 

(2) The next difficulty is the constant interference of the 
states in city government, not only by the altering of the char- 
ters, but by new legislation throwing additional duties upon all 
the cities, and by special acts expressly intended to aid or de- 
press the political leaders of the city government for the time 
being. Well-intentioned legislation produces confusion, and 
ill-intentioned legislation sometimes paralyzes a good admin- 
istration. What is needed here is a more intelligent division 
of powers, committing to the city more of the city functions ; 
and then the legislature ought to keep its hands off. 

(3) Another difficulty is adherence to bad methods of gov- 
ernment. In most cities, both the mayor and the council have 
too httle power ; they are both too much tied up by legislative 
acts, and hence both work at a disadvantage ; there are too 



212 City Problems. [§ loi 

many officers, elective and appointive, and their terms are too 
brief. A study of English, French, and German methods will 
furnish many useful lessons as to the proper organization of 
local government. 

(4) Another trouble very hard to prevent is occasional cor- 
ruption in the city government. This may also occur in state or 
national affairs, but is perhaps more common in cities because 
it is harder to fix responsibility, and because there is so much 
detail in city business that it is hard to watch it. City govern- 
ments are expensive : both the annual expenditure and the 
public debt are constantly on the increase, and they do not 
always furnish a good article of government for the money. 

101. Possible Improvements in City Government. 

If the experience of eighty years of large cities has not yet 
taught the Americans how to carry on their governments, it is 
not likely that they will be made perfect in the next eighty 
years ; but two powerful agencies are always at work for re- 
form. The first is time : it is impossible that the great cities 
can continue indefinitely to increase in population at the 
present rate, and hence many of the evils which result from 
temporary and unexpected changes will disappear as time 
goes on. The cities will at last find themselves. The second 
agency is better organization, which would remove many of 
the internal difficulties of cities. The system of responsible 
mayoralty has much to commend it, and is apparently gaining. 
It tends to improve the whole administration of cities : for if 
the mayor means well, he has the power to compel his subor- 
dinates to support him ; and if he means ill, public attention 
is centred upon him, and he is justly held personally respon- 
sible for the acts of his subordinates. 

On the other hand, it is unfortunate and demoralizing that 
so little power should be left to the city legislatures. If the 
state legislatures would put into their hands many of the sub- 
jects now carried on under state law, the people of the city 
would feel stronger responsibility. This is what is meant by 



^ ]oi] Improvements. 213 

the term " municipal home rule," — namely, the desirability 
of having a community like a great city make its own ordi- 
nances on matters which do not directly concern the people of 
other cities or of rural districts. Executive officers ought to 
be left freer in their executive duties ; the city legislature ought 
to be less hampered in its work of legislation. Another im- 
provement would be greater publicity with regard to the work- 
ing of city governments : reports ought to be more numerous, 
briefer, and clearer. 

The ill effect of party system can in part be obviated by the 
very common method of holding municipal elections on a dif- 
ferent day from the state or national elections. This prevents 
combinations and deals, and leaves people freer to vote accord- 
ing to their ideas of what is good for the city. People vote 
for the things that they think most important ; and if in the 
long run they prefer party candidates, irrespective of municipal 
issues, no one can protect them from the ill results. 

Civil service reform in cities is a powerful corrective on the 
party system, because, if rigorously applied, it takes away from 
party managers the power of using patronage. If the minor 
executive offices are filled by some other method than personal 
influence, the holders oLthose offices are not compelled to 
turn out and work for their party on penalty of dismissal, and 
they and their friends are more likely to act according to their 
conception of the welfare of the city. 

In the long run, however, the only effective remedy for bad 
government in the city, and the only guaranty for good govern- 
ment, is a sentiment of civic pride : there can be no hope of 
good government if people do not care that their city is dirty, 
unhealthy, has bad water, and is plundered by private corpora- 
tions ; if the well-to-do people in a city do not care that their 
poorer neighbors suffer. Good city government will take care 
of itself when people cease to be proud of their city because it 
is big, and begin to be proud because it is beautiful, clean, 
healthful, has the best schools, the best police, the best fire 
department, the most public-spirited officials, — when the 



214 City Problems. [§ loi 

people who have most of the other advantages of life insist 
on the best government for themselves, their children, their 
neighbors, their fellow- citizens, their country ; for in the long 
run the well-to-do in city or in state get honest and effective 
government, if it is a thing that they really want. 



^ 



Part V. 
National Government in Action. 



CHAPTER XIII. 

INTERNAL ORGANIZATION OF CONGRESS. 
102. References. 

Bibliography: M. P. Follet, The Speaker (1896), 331-335; L. G. 
McConachie, Congr. Committees (1898), 420-425; A. B. Hart, Manual 
(1908), §§ III, 112 ; E. McClain, Constitutional Law (1905), § 31 ; R. C. 
Ringwalt, Briefs on Ptiblic Questions (1906), Nos. 8, 9; Channing and 
Hart, Guide (1896), §§ 30*^, 33 ; list of aids to government documents, in 
Introduction, above; Brookings and" Ringwalt, Briefs for Debate (1896), 
Nos. 13, 14. 

Congress in General : M. P. Follet, The Speaker (1896) ; J. A. 
Woodburn, Am. Republic (1904), chs. iv, v; E. McClain, Constitutional 
Law (1905), § 32 ; P. S. Reinsch, Legislative Methods (1907), chs. i-iii ; 
H. C. Lodge, Frontier Town (1906), No. 3 ; H. Miinsterberg, Americans 
(1905), ch. iv ; R. L. Ashley, Am. Federal State (1902), chs. xi-xiii ; J. A. 
Fairlie, National Administratioji (1905), ch. iii; H. J. Ford, Am. Politics 
(1898), chs. xviii-xxi ; B. A. Hinsdale, Am. Government (rev. ed., 1895), 
chs. xvi-xxv ; J. Bryce, Am. Commonwealth (ed. 1901), I, chs. x-xxi ; T. 
M. Cooley, Constitutional Law (3d ed., 1898), 47-52, 105-113 ; C. H. 
Kerr, United States Senate (1895) ; A. L. Lowell, Essays on Government 
(1889), No. I ; T. H. McKee, Manual of Congr. Practice (1891) ; W. 
Wilson, Congr. Government (1885). The daily despatches of the Wash- 
ington correspondents give a good notion of what goes on. Notable auto- 
biographical books, e. g. T. H. Benton, Thirty Years' View (2 vols., 1854, 
1856) ; J. G. Blaine, Twenty Years of Congress (2 vols., 1884, 1886) ; S. S. 
Cox, Three Decades (1885) ; John Sherman, Recollections (2 vols., 1895) ; 
A. G. Riddle, Recollections (1895) ! Geo. F. Hoar, Autobiography (1903) ; B. 
Harrison, This Country of Ours (1898), chs. ii, iii; H. von Hoist, Consti- 

215 



21 6 Organization of Congress. [§ 103 

iutional Law (1887), §§ 20-24, 28-34; J. R. Tucker, Constitution (1899), 
I, 381-456; W. Wilson, The State (1900), §§ 1273-1305; J. W. Burgess, 
Pol. Science (1890), II, 41-58, 106-130; G. H. Haynes, Election of Senators 
(1906) ; Official Congressional Directory (for each session of Congress). 

The Speaker : M. P. Follet, The Speaker (1896), chs. ii, iii, x, xi ; A. 
B. Hart, Practical Essays (1893), No. I; J. Bryce, Am. Commonwealth 
(rev. ed., 1901), I, 138-141. 

Committee System : M. P. Follet, The Speaker (1896), ch. viii ; L. G. 
McConachie, Congr. Comtnittees {iSg%) ; F. Sx\o-w, Defeyice of Congr. Gov- 
ernment (Am. Hist. Assoc, Papers, IV, 309-328, 1890) ; J. Bryce, Am. 
Co7nmonwealth (ed. 1901), I, chs. xiv, xv; H. von Hoist, Constitutional 
Law (1887), §§32, 37. — Sources: Congr. Record (any typical day's session 
will show the course of business) ; T. H. McKee, Indexes to Reports of 
Committees (1887) (list of Senate and House reports). Consult House 
Reports and Senate Reports for text of committee reports. Plearings before 
committees are occasionally published, though not in any regular series. 

103. History of the Two National Houses. 

To describe state and local governments comprehensively 
is impossible', because there are so many types and varieties. 
The national government, however, is not only more com- 
pletely organized than that of any state or city, but is also a 
unified system, well distributed in three departments. Of 
these the most powerful is the legislative body. 

The origin of Congress is to be traced back to the Second 
Continental Congress, which in 1775 ^^^^1 to act as legislative, 
executive, and source of judiciary power, till a Confederation 
could be organized. No other method but an equal repre- 
sentation of the colonies was then practicable ; and under the 
Articles of Confederation, in 1781, another Congress was or- 
ganized in a single house, each state having one vote. Seven 
years' experience showed that such a body was unequal to 
its manifold responsibilities, and the large communities were 
restive at the equal vote of the small states. The Federal 
Convention, therefore, in its earliest sessions adopted the 
principle of a national legislature of two houses, and with 
some difficulty, by the so-called "Connecticut Plan," hit upon 
a method of representation which protected the small states 
by giving them equality in one house, and the large states by 



§ I03] Two National Houses. 217 

giving them representation in proportion to numbers in the 
other house. Thus, as a way out of a practical difficulty, the 
nation returned to the English and colonial bicameral system. 

Since the organization of the government in 1789, all legis- 
lation has come from two houses acting in concert ; but three 
additional functions of government are performed by the 
Senate alone : (i) it has power to confirm or reject nomina- 
tions of executive officials by the president; (2) it shares 
treaty-making power with the president; (3) it sits as a court 
of impeachment. In all matters of legislation the two houses 
have equal authority, for the special constitutional prerogative 
of the House of Representatives to initiate revenue bills has 
proved of little significance. 

In the history of the United States, the Senate, as the smaller 
house, with a longer term and with its special functions, has 
usually been the more dignified, the stronger, and the more 
determined body. During the first twenty-five years of the 
republic, foreign relations were of prime importance, and the 
Senate's power over treaties was constantly invoked. It was 
not till 181 1 that Henry Clay arose, the first speaker who un- 
derstood how to make the House of Representatives powerful : 
under his skilful management the House, from 1815 to 1825, 
was the body which probably did most to initiate legislation and 
to attract public attention. Daniel Webster, John C. Calhoun, 
Langdon Cheves, James Buchanan, and many other active 
young men won their spurs in the House ; and in the great 
Missouri debates of iSiSto 1821 the House forced the fighting, 
and compelled the Senate to come to the Missouri Compromise. 

From about 1830 to 1861 the Senate was on the whole the 
stronger body. In it the great triumvirate of statesmen, Web- 
ster, Clay, and Calhoun, made their speeches and exercised 
their influence ; and its power of confirmation of political ap- 
pointments was very important. The House was several times 
nearly balanced politically, and lost effectiveness : for instance, 
the effort of the House, in 1846-47, to force the Wilmot 
Proviso on the Senate was unsuccessful. 



21 8 Organization of Congress. [§104 

During the Civil War both houses got new powers ; the 
Senate, however, lost its prestige in the unsuccessful attempt 
to impeach President Johnson in 1868. Since the Civil War 
the Senate has in general been more powerful than the House, 
because the latter body has grown too large for actual debate. 
The Senate still keeps up its ancient tradition that every sen- 
ator shall speak as long as he has anything to say upon the 
question ; hence speeches in the Senate make more impres- 
sion on the country at large. Since the Civil War, also, the 
power of the speaker of the House has been greatly augmented, 
with the result that individual representatives find fewer oppor- 
tunities to distinguish themselves. Only an unusual speaker, 
like Mr. Carlisle or Mr, Reed, can so concentrate the authority 
of the House as to make head against the Senate. 

As a whole, Congress has gained power ever since 1789, 
not so much at the expense of the executive and judiciary, — 
for both presidents and courts have well asserted their prerog- 
atives, — but by the steady increase of federal functions, due 
to the growth of the country, and especially to a vast gain in 
the importance of matters subject to specific federal powers, 
such as interstate and foreign commerce, coinage, banking and 
currency, and dependencies. 

104. Choice of Senators. 

The two houses are differently constituted and have different 
traditions. The Senate is really a continuation of the old 
Congress of the Confederation, in which there was an equal 
vote of states, with the great improvement thai the two mem- 
bers vote separately. As representing the states, the sen- 
ators must be chosen by the states ; and the body within the 
state designated by the constitution for that purpose is the 
legislature. 

So long as Congress took no action on the election of sena- 
tors, each state for many years regulated that matter for itself : 
about half of them required a concurrent vote of both houses, 
and about half required a joint convention. In pursuance of 



§ I04] Choice of Senators. 219 

the constitutional provision that the method of electing sena- 
tors may be made or altered by Congress, a statute was passed, 
July 25, 1866, for a uniform system. If on the second Tues- 
day of the session each house shows a majority for the same 
candidate, he is elected ; if not, on the next day the two houses 
must meet at noon in joint session and cast a ballot, and con- 
tinue to ballot every legislative day until some one is elected. 
In most cases, after a legislature is elected, it is not positively 
known who will be chosen senator, unless there is a state boss 
who looks after such matters. 

Since 1881 repeated efforts have been made to obtain a 
a constitutional amendment providing for election of senators 
by a popular vote in each state, a plan first suggested in 1787. 
In a very few cases the result has been reached indirectly. 
For instance, in 1858 the Republican convention of Illinois 
announced that, if a Republican majority were elected in the 
next legislature, Abraham Lincoln would be chosen senator ; 
and the Democrats made the same pledge inbehalf of Stephen 
A. Douglas. The advantage of direct election would be that 
unpleasant forms of influence, and sometimes of bribery, of 
members of the legislature would disappear, and that no man 
could be senator who had not personal popularity in the state. 
The disadvantage would be that reelection would be much less 
frequent ; and there is no guaranty that men would be chosen 
of as high character as at present. 

Besides the choice by the legislature, there is a provision 
that, if vacancies occur during the recess of the legislature, 
the governor may make temporary appointments till the next 
meeting of the legislature and the election of a successor. 
This power of appointment is very frequently exercised, and 
often the man so designated is afterwards chosen by the legis- 
lature. When the legislature has an opportunity to elect and 
fails to do so, the Senate has since 1850 usually refused to 
admit senators appointed by the governor. The state of 
Delaware from 1901 to 1903 had no senators because there 
was a deadlock in the legislature. 



2 20 Organization of Congress. [§ 104 

The qualifications for a senator are simple : thirty years old, 
nine years a citizen, and an inhabitant of the state from which 
he is chosen. Inhabiting does not always mean permanent 
residence, for there have been repeated cases of Western state 
senators who lived in New York or other states. Even the age 
qualification was ignored when Henry Clay appeared as senator- 
elect from Kentucky in 1806. State governorships are often 
a stepping-stone to senatorships, and successful members of 
the House of Representatives are frequently made senators. 
In some states the legislatures choose men of no large public 
experience, because they have great wealth and local power ; 
and the Senate always contains many rich men ; although, on 
the other hand, it contains an equal number of men who have 
no accumulation and little income except their small legislative 
salaries. 

By the constitution, each house is the sole judge of the 
qualifications of its own members. This means that their 
contests and disputed elections and charges of fraud are 
settled by the houses when presumptive members appear and 
demand seats. Occasionally entrance is refused because the 
House or Senate dislikes the character of the claimant : thus, 
in 1899 a representative-elect from Utah was refused a seat 
because of polygamy. 

The term of a senator is six years, but in four cases — Ben- 
ton of Missouri, Morrill of Vermont, Allison of Iowa, and Jones 
of Nevada — the service has been five full terms, or thirty 
years. The likelihood that a senator will be reelected at least 
once is about two to one, and the average service of a senator 
appears to be about twelve years. Deaths, resignations for 
private reasons, and resignations to receive cabinet or dip- 
lomatic appointments are not uncommon. The Senate is 
divided into three classes, so that the term of one third of 
the members expires each two years. 

Power to control federal appointments of itself makes the 
senator a more powerful man than the representative : he knows 
Washington, knows the departments, knows the president, 



§ 105] Choice of Representatives. 221 

knows his fellow-senators and the leading representatives, and 
hence is able to do more for a constituent, or a state, or the 
public interest than the average representative. 

105. Apportionment and Choice of Representatives. 

The English and colonial idea of representation was that 
places and interests were to send members : in England at the 
time of the Revolution, counties and cities, whether great or 
small, had representatives in Parliament. The New England 
unit of representation was the town ; the Southern unit was 
the county. One of the greatest changes in American ideas 
of government came about when, soon after the Revolution, 
representatives began to be apportioned by population. The 
choice of members of the national House of Representatives 
is based on this principle of districts of about equal population, 
except that parts of two states cannot be combined to make a 
district. 

The system of apportionment has been subject to three dis- 
turbing influences, (i) The three-fifths ratio for slaves, by 
which, from 1789 to 1865, in allotting members 100,000 slaves 
counted as much as 60,000 freemen. Since no slave voted, 
this gave the white people of the South relatively more influ- 
ence than the white people of the North in constituting the 
House of Representatives. On the other hand, the Southern 
states had less representation in proportion to their total pop- 
ulation ; and hence the Thirteenth Amendment in 1865, which 
destroyed the category of slaves, thereby enlarged the relative 
number of Southern representatives. 

(2) The unequal growth of the population. The constitu- 
tion provides, therefore, that there shall be a census every ten 
years, in order that there may be a suitable reapportionment. 

(3) The fact that electoral districts are not made by Con- 
gress but by the state legislatures, though the constitution has 
no specific clause on that point. In the early days of the re- 
public, it was not uncommon to elect all the members from a 
state on a " general ticket " ; but as the parties became sharply 



222 Organization of Congress. [§ 105 

divided, this meant that the majority in the whole state shut 
the minority entirely out. The gerrymander is frequently used 
by state legislatures in making congressional districts. The 
subjoined illustration, showing the districts in South Carolina, 
will make clear how little attention the states pay to the funda- 
mental requirement that the federal districts shall be composed 
of contiguous territory, and shall be as nearly as may be equal 
in population. The South Carolina districts were skilfully 
arranged so as to throw large blocks of the negro vote together ; 
and the population of the "districts in 1890 varied from 134,000 
in the first to 217,000 in the seventh. 

In assigning the members, there has been a constant ten- 
dency to increase the size of the House ; only once, after the 
census of 1840, was the number diminished. The apportion- 
ments have been as follows: (1789) 65 ; (1792) 105 ; (1802) 
141; (1811)181; (1822)212; (1832) 240; (1842) 223; 
(1852) 234; (1862) 241 ; (1872) 292; (1882) 325 ; (1891) 
356 ; (1901) 386. One of the reasons for the increase is that 
no state likes to have fewer members than it had in the previous 
Congress ; another reason is that, even with the largest member- 
ship, the average number of inhabitants to a member of Con- 
gress has risen from 33,000 in 1 793 to about 194,000 in 1903. 

In reassigning members, all small states get at least one : 
thus Nevada, with an eighth of the population of Vermont, has 
half as many members. The next step is to fix the total num- 
ber of the new House, and to subdivide it into the population 
of each state ; the quotient is the number of members assigned 
to each. The trouble almost always comes over the fractions : 
Congress tries to give an additional member to every state that 
has a fraction more than half the quotient. The ratio in 1900 
was about 194,000 : a state with 875,000 inhabitants gets 
five members; a state with 1,060,000 still has five members; 
a state with 1,070,000 has six members. Wherever a state 
legislature has neglected to redistrict in order to provide for 
new members, the additional members may be chosen from 
the state " at large," —that is, by vote of the whole state. 




A GERRYMANDERED STATE 



§ I05] Choice of Representatives. 223 

The qualifications for members of the House are twenty-five 
years of age, seven years of citizenship, and inhabitancy in 
the state from which chosen. To these qualifications, as in 
the case of the Senate, the states cannot constitutionally add 
anything ; but there is an unwritten law that the represen- 
tative must live not only in the state, but in the district from 
which he is chosen. This is not an invariable principle : in 
a city like Greater New Yorkj which sends seventeen con- 
gressmen, a man living in an up-town district may represent 
a down-town district; in 1890 Mr. William Everett ran for 
Congress from the Lynn district of Massachusetts, although 
he lived in the Quincy district. 

The reason for this unwritten rule is the same as for mem- 
bers of the legislature and of the city council : people think 
that they will be more directly represented by a man who 
lives among them. In England, France, and Germany a man 
may stand for any district which chooses to elect him ; thus 
young men of promise enter public life, and a man of emi- 
nence who loses his own district may get an election from some 
other constituency. The effect in America is to drive out of 
the House a man who happens to live in a district in which 
the majority are not of his party. The American system fur- 
ther leads to understandings between counties in a congres- 
sional district that county A shall have the member this time, 
county B two years hence, county C four years hence ; and 
thus reelections are less frequent. 

The voters for members of Congress are the same as the 
voters for members of the more numerous branch of the state 
legislature ; that is, the national suffrage is not the same in all 
the states. The Fourteenth Amendment provides that, for 
any state which denies the suffrage to male citizens except 
for crime, the basis of representation in the House of Rep- 
resentatives shall be proportionally reduced. This provision 
has never been applied ; it would require a special act of 
Congress to carry it out, and would affect the Northern states 
which have educational quahfications, as well as the numerous 



224 Organization of Congress. [§ 105 

Southern states which have recently disfranchised those who 
cannot show to the satisfaction of election officers that they 
can read or understand the constitution. It is well to throw 
the responsibility for regulating and protecting the suffrage 
upon the states : a separate state and national suffrage would 
lead to endless friction ; and if state governments undertake, 
however unjustly, to deprive some of their citizens of votes, it 
is in practice almost impossible for the federal government to 
maintain the franchise. 

For many years the elections for members of the House 
were held at various dates, and sometimes lasted for several 
days within one state ; but the constitution gives to Congress 
distinct power to make or alter regulations as to time, place, 
and manner of holding elections. Three sets of acts have been 
passed, of which two are still in force, (i) In 1842 Congress 
prescribed that thenceforth all members should be chosen by 
districts, and not by general ticket. (2) By acts of February 
28, 1871, and February 2, 1872, Congress provided for elec- 
tions by ballot, and for the choice of all members of the House 
on the Tuesday succeeding the first Monday of November ; by 
an amendment to the last statute, a few states which hold early 
elections are still allowed to choose congressmen at a little 
earlier time. Should the states defy the provision for choice 
by district or on a fixed day, the remedy would be for the 
House to refuse to seat members so chosen. (3) The third 
series of acts were those of May 2t, 1870, and February 28, 
1 87 1, providing for the control of elections by federal officials 
in the South and in the Northern cities, especially in New York ; 
these acts were repealed in 1894, since which time the United 
States has taken no responsibility for the conduct of elections. 

Although the intention is that congressional districts shall 
be about equal in population, there is a marvellous difference 
in the votes cast in different states. A Mississippi district, 
with 143,000 population, in 1890 cast 2,800 votes; an In- 
diana district, with 129,000 people, cast 9,000 votes; a South 
Carolina district, with 2 1 7,000, cast 1 3,700 votes ; a Massachu- 



§ 105] Choice of Representatives. 225 

setts district, with almost the same population, cast 29,000 
votes. For many years the New England states required a 
majority of all the votes cast ; but Rhode Island, the last state 
to stand by the system, gave it up in 1894, and the states now 
all accept an election by plurality ; hence members of Congress 
are frequently chosen by a third or less of the votes cast, which 
may represent not more than a fourth of all the voters ; but 
the alternative is a second or a third election, which tires 
people out. The governor cannot appoint members to fill 
vacancies in the House, but must call a special election ; the 
result is that there are almost always a few vacant seats. 

The members of the national House of Representatives are 
in general men of intelligence and character ; most of them 
are lawyers ; there are also many business men, and an occa- 
sional doctor or minister. Most of the members elected have 
seen service in the state governments, very often in the state 
legislatures. Although their term is two years, the likelihood 
of being reelected even for one term is distinctly less than that 
of a senator. In the first place, a man cannot be reelected 
without being renominated ; or, even if he desires to return, 
he may have offended important constituents, or he may have 
entered into an agreement that he would retire at the end of 
one term, or he may fail to " keep up his fences," as the phrase 
goes ; . or, even if nominated, there may be a poUtical upheaval 
in his district so that he loses his seat. The average term of 
service in the House is not more than four or five years ; yet 
Joshua R. Giddings represented the same district from Ohio 
continuously from 1839 to 1861, and Samuel J. Randall sat 
for Pennsylvania from 1863 to 1890. Although some mem- 
bers of the House are not scrupulous about the use of politi- 
cal power, it is a body little subject to corrupt influence ; 
since the Credit Mobilier investigation of 1872, which unfor- 
tunately involved some innocent persons, there have been no 
great scandals in the House. The members of Congress as a 
body will compare favorably with any assemblage of lawyers 
or doctors or ministers or college professors in the land. 

15 



2 26 Organization of Congress. [§ io6 

106. Meetings of Congress. 

Under the constitution, Congress meets annually, and may 
be summoned in extra session by the president at other times. 
Ever since 1789 the annual meeting has been on the first 
Monday in December. In fourteen instances Congress has 
been summoned by proclamation before the regular time, — 
for instance, on July 4, 1861, to make preparations for the 
Civil War. In 1867, 1869, and 187 1, by special statute 
Congress met on March 4, the purpose being to keep a watch 
on President Johnson ; the act was speedily repealed after 
President Grant came into office in 1869, and has never since 
been renewed. 

A consequence of this flexible system of membership is that, 
since a Congress expires on March 4 in the odd year, and the 
new Congress may be called at any time thereafter, it is 
necessary to elect members of the House in the November 
election beforehand. If there be no called session, the mem- 
bers then chosen will not assemble until December, thirteen 
months later ; and hence a wave of popular feeling is often 
spent long before Congress is organized. This is in sharp 
distinction to the practice of most state legislatures, which 
begin only a few weeks after the election of new members. 
One result of the long postponement is that a new president 
commonly has from March 4 to the following December 
to get his administration in order before Congress comes 
together. 

Either house may be called separately if necessary, but in 
practice only the Senate is so called, and that in the first 
weeks of the presidency, to confirm the nominations of the 
new cabinet. By the constitution, neither house can adjourn 
for more than three days without the consent of the other ; 
but the two houses usually agree beforehand on a day when 
they will adjourn. 

The actual length of the sessions of Congress depends on 
circumstances. In every odd year Congress expires at noon 



§ loy] Meetings. 227 

on March 4, and hence the so-called "short" session is ordi- 
narily about four months, interrupted by the holidays. The 
long session might in theory last from December to the next 
December; but Congress usually adjourns in June, July, or 
August. The longest session on record is that of 1890, when 
there was no adjournment until October i, after 240 days of 
session. 

There is nothing in the constitution to show when a Con- 
gress expires ; but, since the day fixed by the old Congress 
for the organization of Congress was Wednesday, March 4, 
that day at noon has been the dividing-line between two Con- 
gresses. It is not uncommon to set back the clock, and thus 
to transact business for a few minutes or hours after the real 
time of adjournment. All unfinished legislative business then 
perishes : bills which have passed one house and are pending 
in the other cease, and must be renewed at the next session 
in order to get a standing. 

Congress met from 1789 to 1791 in New York; from 1791 
to 1800 in Philadelphia; since 1800 the place for the meet- 
ing of Congress has been the national Capitol in Washington. 
The Capitol is under the control of the two houses, which 
provide for its policing and subdivide its rooms at their con- 
venience. The organization of the Senate is permanent ; the 
House is entirely newly elected, and must be called to order 
by the clerk of the preceding House, and only persons who 
appear on his roll are entitled to seats. On one occasion, in 
1839, when the House was very close, the clerk practically 
dictated its organization by refusing to seat five persons who 
had certificates from the governor of New Jersey ; and it was 
several weeks before the House could be organized. 

107. Privileges and Obligations of Members. 

Membership in Congress carries with it, not only prestige 
and opportunity, but substantial benefits and the performance 
of duties. In the first place, every member of Congress draws 
a salary. The House of Commons and most European parlia- 



2 28 Organization of Congress. [§ 107 

ments are unpaid ; but the constituents of some colonial assem- 
blies paid their members, and from the earliest organization of 
a Continental Congress the state legislatures made allowances 
to their members in Congress. The constitution provides 
that both senators and representatives shall be paid out of 
the federal treasury. From 1789 to 1815 the compensation 
was six dollars per diem; from 181 7 to 1855 it was eight 
dollars. The actual number of days during two years' service 
was probably never more than 300, making an average salary 
of less than ^1,200 per year. On March 19, 181 6, an act 
was passed for a salary of ^1,500 per year, which was repealed 
within twelve months on account of a terrible storm of popular 
opposition. In 1855 a salary of ^3,000 was voted, which was 
raised to ^5,000 in 1865. In 1873, the last day of the session, 
an act was passed raising the salary to $7,500, thereby granting 
a bonus of $5,000 to every senator and representative. Again 
there was a perfect storm of public disapproval ; and several 
members of Congress, among them James A. Garfield, refused 
to touch what they considered a fraudulent income. A few 
days after the begmning of the next session the law was 
repealed, and the salary was restored to $5,000 a year, where 
it now stands. With the present membership of Congress, 
this involves the payment of over $2,500,000 a year for salary 
and mileage. 

Mileage, from 1789 to 1815, was six dollars for every twenty 
miles of travel; from 181 7 to 1865 it was eight dollars for 
every twenty miles, or forty cents a mile; from 1865 to the 
present day it has been twenty cents a mile. Mileage is 
granted for one round trip in each session; but it is very 
much in excess of the actual cost of travel at present, and 
members of Congress who have railroad passes find it a clear 
payment. It is estimated that the allowed mileage about pays 
the fares of a congressman, his wife, and three children. 
Members from very distant states have sometimes drawn an 
enormous mileage : there was a time when the shortest route 
from Oregon was about 5,000 miles, and the fortunate member 
drew $2,000 for his round trip. / 



§107] Privileges of Members. 229 

Another privilege of members of Congress is their post- 
office frank, which with some brief interruptions has lasted 
ever since 1789. It was sometimes abused in early days, 
when letters were expensive and before the express service 
was developed : members of Congress are said to have sent 
home their washing to distant states. At present the frank- 
ing privilege to a busy member of Congress, though in- 
tended to apply only to official letters, saves him about ^300 
a year. 

Another use of the word "privilege" covers the protection 
of members of Congress from arrest, in all civil and most 
criminal cases, while on their way to and from a session of 
Congress, or in Washington during its continuance. Still 
another privilege is the right of a member to be free from 
responsibility anywhere else for words spoken in his congres- 
sional house : no member can be prosecuted for slander or 
libel for anything said in debate. 

The first official duty is that of being present at the meetings 
of one's house. The pressure upon the time is so great, and 
the amount of routine business so large, that many faithful 
members are not always in their seats while the sittings are in 
progress. In fact, they are not always in Washington, for they 
may have private business to look after at home ; though it is 
expected that a member of the House will not leave the city 
without notifying the speaker. As election approaches, mem- 
bers are very impatient to get home and look after their 
"fences," — that is, to make preparations for a renomination. 
Commonly, when a member wishes to be absent, he arranges 
with some one in the opposite part for a "pair" on all party 
questions ; that is, since neither votes, no majority is affected. 
Pairs are regularly announced in the voting lists. 

While the sitting is going on, members may be in committee 
rooms, though committees are ordinarily not allowed to meet 
at that time ; or they may be in a lobby talking things over 
with other members or with constituents. If any member calls 
the attention of either house to the fact that less than one half 



230 Organization of Congress. [§107 

of the total number (that is, 46 m the Senate and 194 in the 
House) are present, business is stopped until a quorum can be 
brought in, and pages are sent out for members. When fih- 
bustering or night sessions are going on, a number less than a 
quorum may send out the sergeant-at-arms to bring in mem- 
bers wherever found, a procedure involving much confusion. 
The rules of the House require that a member shall vote unless 
formally excused ; but John Quincy Adams in 1832 set the 
precedent of refusing to vote, and since that time no member 
has ever been disciplined for that offence. 

Another obligation is to keep order, a duty enforceable by 
votes of censure and other like penalties, and by the right of 
each house to expel members on a two-thirds vote. The use 
of personal and abusive language, acts or threats of violence, 
unseemly or treasonable expressions, may be visited with cen- 
sure, but never by suspension for limited periods from the 
privileges of the House. Probably either house might imprison 
one of its own members, though there is no such case recorded. 
Expulsions have been few: the attempt was made in 1837, 
and again in 1842, to expel John Quincy Adams from the 
House for speaking his mind on slavery ; a senator from Indi- 
ana was expelled from the Senate in 1863 for treasonable utter- 
ances ; and a member from South Carolina in 1870 for selling 
West Point cadetships. Expulsion, which requires a two-thirds 
vote, must be distinguished from refusal to receive a member 
who claims to be elected but has not yet taken his seat, which 
requires only a majority. 

Something might be said of the unwritten duties of members 
of either house, — the duties of attending committee meetings, 
and looking after the public interests by voting for good 
measures and against bad ones. Some years ago, one member 
of Congress, not otherwise very efficient, got a great reputa- 
tion and the nickname of " the Great Objector," by protesting 
against every proposal to increase appropriations. In general, 
the members of the House and Senate fairly represent the 
public opinion of their constituents ; and to represent one's 



§ io8] Obligations of Members. 231 

constituents in open and honorable measures for the public 
good is one of the most important duties of the legislator. 

108. Speaker of the House. 

The officers of the two houses, aside from their respective 
moderators, are not important. The secretary of the Senate 
and clerk of the House are the recording officers, each with a 
staff of subordinates. Each house has a sergeant-at-arms, a 
postmaster, and a superintendent of documents. The selection 
of minor officials is honeycombed with politics, and has some- 
times led to queer arrangements by which one set of men do 
the work and divide the salary with another set who have the 
nominal appointments. The doorkeepers have some influence 
because of their opportunity to bring constituents and mem- 
bers together. In 1875 a doorkeeper drew down upon him- 
self the laughter of the nation by writing a letter (which became 
public) containing the boast : " I have more invitations to 
frolics with members and senators than any man in Washington. 
I am a bigur man now with the members than old Grant." 

The presiding officer of the Senate is the vice-president of 
the United States. Several have won a reputation for dignity 
and skill in that position, especially Thomas Jefferson. In 
addition, the Senate chooses a " president pro-tem," who takes 
the chair when ' the vice-president is absent, or when, as has 
five times happened, the vice-president becomes president 
through the death of his predecessor. Either vice-president 
or president pro-tem may vote on a tie ; but each acts only as 
a moderator, and has no special power through his office. 

Quite different is the status of the speaker of the House of 
Representatives, who is always chosen out of the membership, 
and has come to be second in political dignity only to the 
president of the United States. The speaker of the House of 
Commons in England has for two centuries been simply an 
impartial presiding officer ; but in the colonies the speakers of 
the assemblies were often heads of the opposition, and the 
practice was early followed out by Congress. The second 



232 Organization of Congress. [§ 108 

speaker, Jonathan Trumbull, elected in 1791, was intended to 
be a party man ; the first great political speaker was Henry- 
Clay, elected in 181 1 and five times chosen thereafter. From 
that time on, whenever the speaker has been a man of strong 
personal character, he has always been one of the greatest 
forces in American government. 

The speaker is always a party candidate, and represents his 
party in the House. The election of speaker has of late years 
been practically decided before Congress met ; but earlier 
there were several exciting struggles. In 1839, for instance, 
it took more than a week to elect Speaker Hunter; in 1849, 
after 59 ballots, no speaker was elected and the House agreed 
to choose by plurality, whereupon Howell Cobb was elected ; 
in 1855 the House was so split that it took two months to elect 
a speaker, Nathaniel P. Banks finally receiving a majority ; in 
1859 two months were again needed, resulting in the choice 
of Pennington. 

The speaker, when once chosen by a majority of the mem- 
bers of the House, becomes more powerful than the majority 
which chose him ; in some cases he is a political Frankenstein, 
more powerful than all the rest of the members put together. 
His power comes from the gradual evolution of three great 
functions. 

(i) The speaker has the right to appoint committees, a 
power which he has held since January, i 790. As the stand- 
ing committees grew up and legislation was parcelled among 
them, this function became more and more important ; for no 
measure can come before Congress that is not reported on by 
a committee, and hence the make-up of the committee may 
determine the fate of a great bill. Furthermore, members are 
eager for the committee appointments, which carry responsi- 
bility and opportunity ; and the man who designates them is 
therefore powerful. 

(2) Another of the speaker's functions results from the fact 
that he has the right to recognize what member is entitled to 
the floor. Since no motion can be introduced, no bill re- 



§ log] Speaker of the House. 233 

ported, no speech made, except by a member recognized by the 
chair, the speaker may practically cut off any member's oppor- 
tunity for distinction. From this point it is but a short step 
for the speaker to refuse to recognize members because he does 
not like them : there have been repeated cases of members 
practically boxed up during a whole session, or during their 
whole term, because the speaker somehow could not see them. 
In fact, during the last fifty years the speaker has been in the 
habit of keeping before him a memorandum of members who 
have asked beforehand that they be recognized when the time 
came. 

(3) The speaker has even greater power over legislation, by 
his right to state and to put questions and to decide points of 
order ; through this power he controls the formal business of 
the House, and exercises great personal influence. He expects 
to know what a member is going to introduce before he will 
recognize him ; and the speaker frequently refuses to recognize 
one of his own party if he tries to make an important motion 
which has not been agreed on by the conclave of leaders. No 
prudent member of Congress thinks of getting a bill through 
unless the speaker is so far satisfied that he will permit it to 
come to vote ; that is, the speaker practically has a veto power 
on every proposition in the House, if he chooses to exercise 
it. So well is the speaker's power understood, that wise out- 
siders who desire legislation not only seek to interest members 
to introduce their measures and to vote for them, but also plead 
with the speaker to permit them to pass. If it be asked why 
the House does not sometime rise up and depose the speaker 
by a majority vote, the answer is that by long experience mem- 
bers have learned that they cannot get forward at all without 
pulling together, and that if they put down one speaker they 
must set up another who will exercise the same powers. 

109. Congressional Committees. 

Next to the speaker, the most powerful influence in Congress 
is the committee system, which is strongly intrenched in both 



2 34 Organization of Congress. [§109 

the Senate and the House. As soon as a speaker is elected, 
he sets to work to make up his hst of appointments, in which 
he is freely advised by members who wish to get upon par- 
ticular committees. As there are 386 members of the House, 
and only something like 600 committee places, the process is 
not easy or swift. First of all, the committee places are roughly 
divided in proportion to the two parties, all the House chair- 
manships now going to the majority party ; then old members 
are, so far as possible, continued on the committees on which 
they have served ; then there has to be a reasonable recogni- 
tion of the different sections of the Union ; then comes the 
personal pressure of members who want a particular committee, 
and especially a committee that has something to do. The 
speaker shuts himself up in his room, but eager members and 
their friends reach him ; and he sometimes flies from Washing- 
ton for a few days. When the list is announced, many party 
friends and still more of the minority members are sure to be 
disappointed. 

In the Senate the committees are appointed in a less respon- 
sible fashion. Nominally the choice is by ballot ; practically 
the Steering Committee of the majority decides how many 
places the minority ought to have ; occasionally an opposition 
senator is left as chairman of a committee. Then the Steering 
Committee of the minority divides up the places of that sec- 
tion according to its judgment. Meanwhile the majority 
conclave has made its assignments, and the two slates are then 
brought together and voted for on a nominal ballot. As two 
thirds of the Senate always hold over, and as half of the other 
third will probably be reelected, committee changes are few. 
The Senate committee places are relatively more numerous 
than the House, and the principle that distinguished men 
gradually come to the headship of committees is more distinctly 
established. 

All the important committees have rooms for meeting in or 
near the Capitol. Since many of them meet seldom, and some 
not at all, the use of the room is considered the perquisite of 



§ log] Congressional Committees. 235 

the chairman of the committee, who also has a committee 
secretary paid by Congress. The sessions of the committees 
are held under the chairmanship of the first person named in 
the official hst, for congressional committees do not choose 
their own chairmen. 

The sessions of the committees are popularly said to be held 
in secret, which is also the case with sessions of a church 
vestry or of an executive committee of a scientific association ; 
in fact, ordinary committee proceedings are easy to learn by 
any one who is interested. Committees meet from day to day, 
and often the most laborious part of a member's service is his 
committee work. Sometimes as many as a thousand bills are 
referred to a single committee in a session ; and the great 
committees on commerce, manufactures, public lands, post- 
ofifices, pensions, war, navy, public buildings, Indian affairs, 
rivers and harbors, and especially the House Committee on 
Ways and Means, which originates financial measures, spend a 
great deal of time and trouble over their bills. A somewhat 
unusual practice is the holding of public sessions, at which 
interested persons may appear and express their minds : for 
instance, when a tariif" bill is on the stocks, those interested in 
a particular industry appear and submit suggestions. Occa- 
sionally reports of hearings are printed and may be had by 
interested people. Committees frequently carry on investiga- 
tions and summon witnesses, who are heard in public. The 
decisions of the committees are all made in private session, 
usually without the presence of the secretary. 

The purpose of the committee system is to subdivide the 
great field of legislation which belongs wholly to Congress, so 
that each division may receive due attention. Congress must 
provide for the improvement and extension of the various 
branches of the public service ; it must keep up a code of 
criminal law ; it regulates foreign commerce and prepares for 
war and peace ; in addition, an unreasonable amount of petty 
legislation for particular individuals is thrown upon Congress. 

The result is an enormous mass of work to do ; and in these 



236 Organization of Congress. [§109 

conditions the committees are a sifting machinery, without 
which both houses would be simply buried under bills. The 
result, however, lacks unity : the speaker appoints the com- 
mittees, but he cannot remove members because they do not 
follow his advice ; the committees act independently of each 
other and often oppose each other. What, for instance, 
should be done with a bill providing that the express business 
of the country be made a monopoly for the post-office depart- 
ment? Bills might be reported on that subject by the com- 
mittee on post-offices or the committee on commerce ; and 
very likely each chairman would try to keep the other chair- 
man from reporting. 

The lack of harmony between committees is especially seen 
in financial matters. For example, up to 1865 one committee 
brought in all the bills for the expenditure of the government ; 
but in 1903 there are eight committees, each of which reports 
its ovyn bills, and no one of which is responsible for all the 
expenditures of the government. In the second place, since 
1865 the commitjees to report bills for expenditures have not 
been identical with the Ways and Means Committee, and 
hence Congress is asked to spend money by those who have 
no responsibility for providing new sources of revenue. Sub- 
stantially the same holds good in the Senate, although the 
appropriation bills there are not so much broken up. The 
existence of the committees makes impossible an orderly and 
systematic national finance, a difficulty that is to some extent 
met in the House by the speaker, whose power is such that 
he can insist on changes in the finance bills ; and in the 
Senate by the steering committee, which tries to agree on a 
policy with regard to revenue and expenditure. 



CHAPTER XIV. 

CONGRESS AT WORK. 

110. References. 

Bibliography: E. C. Mason, Veto Power (1890), 219-221; M. P. 
FoUet, The Speaker (1896), 331-335; A. B. Hart, Manual (1908), §§ in, 
112, 214, 215. See also references to ch. xiii 

Debates and Proceedings: H. C. Lodge, Hist, and Pol. Essays 
(1892), 169-197; A. B. Hart, Practical Essays (1893), No. ix ; J. Bryce, 
Am. Commonwealth (ed. 1901), I, chs. xvi-xxi, App. 673-681 ; M. P. 
Follet, The Speaker (1896), chs. iv-ix; B. P. Poore, Perley's Reminiscences 
(2 vols., 1886) ; E. C. Mason, Veto Power {1890), ch. iv ; E. McClain, Con- 
stitutional Law (1905), §§ 33-35; E. C. Mason, Congr. Demands for In- 
formation (Am. Hist. Assoc, Papers, V, 367-375, 1891); W. Wilson, 
Congr. Government {1885), chs. ii-iv ; J. Vzx\.ox\,Topics of the Time (1871), 
Nos. 3, 6, 8; Relief of Co7igress (Am. Bar Assoc, Reports, 1887, PP- 
396-405); E. P. Lee, Congress at Work [Albany Law Journal, XLVIH, 
386-390, 1893) ; J. L. Mitchell, How a Law is made [North Am. Rev., 
CLIX, 537-544, 1894); C. F. Crisp, How Congress Votes Money [Ibid., 
CLXn, 14-20, 1896). — Sources : J. H. McKee, Manual of Congr. Prac- 
tice (iS^i) (Congressional forms); Congr. Record (1873-) (debates); J. 
A. Garfield, Century of Congress, in Works (1883), II, 463-489. H. von 
Hoist, Constitutional Law (1887), §§ 31-34; Edmund Alton, Among the 
Lawmakers (1900). 

Legislation: A. B. Hart, Practical Essays (1893), No. 9; E. C. 
Mason, Veto Poiver (1890) ; E. McClain, Constitutional Law (1905), § 36. 
— Sources: House Journal 2inA Senate Journal, iox formal proceedings; 
text of annual statutes. Statutes at Large ; summaries of current legisla- 
tion are given in Appleton' s Annual Cyclopcedia, Tribune Almanac, and 
Pol. Set. Quar. See also pp. xxx-xxxiii above. 

111. Open and Secret Sittings. 

The meetings of Congress have three purposes, — to record 

action taken, to discuss measures, and to come to a vote. 

During the session the two houses sit at such times and for 

such a number of days each week as seem good to them, 

237 



238 Work of Congress. [§ m 

The session of 1 899-1900 lasted 185 days, of which 24 were 
Sundays, 16 were days on which neither house was sitting, and 
13 were days on which only one house was sitting. Ordi- 
narily the houses meet at noon, and sit for four or five hours. 
Congress occasionally sits on Sunday, in which case the pro- 
■ ceedings are entered on the record as of the day previous. 
Evening sessions are unfavorable either for discussion or for 
intelligent voting ; and the all-night sessions sometimes held 
when filibustering is going on, are scenes of confusion. 

There is no constitutional provision that the houses shall 
sit in public : in its first two years the Senate invariably held 
private sessions, so that we should know little of the detail of 
its earliest discussions but for the diary of Senator Maclay of 
Pennsylvania. In 1793 the Senate opened its doors for ordi- 
nary legislative business, and in 1802 permitted a stenographic 
reporter ; but whenever a majority votes to " go into execu- 
tive session," the spectators are ejected and the doors closed. 
Senators are bound in honor not to divulge the proceedings 
of this executive session, which is almost invariably devoted 
to nominations for office and to treaties. All the officers are 
sworn to secrecy, and even the journal of these sessions is 
separately and privately kept ; nevertheless, the newspapers 
almost invariably report the next morning any important 
action or debate in the secret session. The executive journals 
up to 1869 have been published. The House has sometimes 
sat in secret, as for instance in 1807, at the time of the Burr 
insurrection; and in the history of the United States there is 
one secret statute, the act of 181 1 for taking possession of 
West Florida. 

About 1800 some enterprising newspapers began an ex- 
tended report of the open debates. In 1833 the Congres- 
sional Globe — a private venture — began to publish verbatim 
debates, and after 1846 Congress regularly subscribed for 
several thousand copies. In 1873 was established the official 
Congressional Record, conducted by paid officers of Congress, 
intended to be a verbatim report of what is actually said on 



§ 112] Sittings. 239 

the floor. These reports are often toned down by the ste- 
nographers, and every member has a right to revise his own 
speeches ; hence pungent expressions are often struck out. 
In addition to this record of debates, each house is under the 
constitution required to keep a journal, which is simply a dry 
statement of the introduction of measures and amendments, 
and of the votes upon them, published annually. 

The ordinary business of both houses goes on in the midst 
of spectators. The original Capitol had small rooms for both 
House and Senate ; but when the great wings were constructed 
in 1859, the room of each house was surrounded by sloping 
galleries on four sides. The House galleries seat 2,500 people, 
the Senate galleries 1,200; and when there is a lively debate 
or an interesting speech, the galleries may be crowded. Priv- 
ileged visitors are accommodated on the sofas behind the 
desks of the members. 

The English Parliament and House of Lords are fitted with 
benches, accommodating not half of the members. Members 
of Congress have each a desk ; but when members cannot 
easily hear what is going on, they are likely to spend their 
time in reading or writing letters, or in conversation with their 
neighbors. In both houses, routine business frequently goes 
on with not a dozen members paying attention, each party 
having a watchful leader who takes care that nothing shall be 
done by stealth. Under such circumstances, the give-and-take 
of debate is diminished. Senators can hear each other ; but 
in the House the space is so large that few voices carry across 
the room. 

112. Rules and Party Management. 

One of the triumphs of the Anglo-Saxon race is its develoD- 
ment of a system of parliamentary procedure. The French 
Chambre is a noisy body, in which order is supposed to be 
secured by ushers with chains of office around their necks, 
but in which members are frequently interrupted by howls of 
derision that drown their voices. Though disorder is not un- 



240 Work of Congress. [§112 

known in the English Parliament and in Congress, it is uncom- 
mon, because they have regulations intended to give every 
speaker a fair chance. Simple rules of order were employed 
in the colonial assemblies, in the Continental Congress, and in 
the Congress of the Confederation ; and with the organization 
of the two houses in 1789 began a new development of par- 
liamentary law. Thomas Jefferson, while vice-president from 
1797 to 1 80 1, wrote his invaluable treatise, commonly called 
Jefferson's Manual, which assembled and classified the prin- 
ciples usually observed in England and in the colonial and 
state deliberative bodies ; and to this day Jefferson'' s Manual 
is the standard of parliamentary law in both houses of Con- 
gress, unless modified by distinct rules. 

By the federal constitution, each house has the power to 
" determine the rules of its proceedings." The Senate is a 
more conservative body than the House, and is continuous ; 
and therefore it alters its rules less often and less radically 
than the House. The purposes of the rules in both houses 
are simple : to allow any member to introduce measures ; to 
give the majority the power to determine what measures shall 
come up for debate and vote, and in what order; to give 
every member a fair chance to express his mind and to offer 
amendments on pending questions ; to secure good order and 
quiet. In course of time, as business has increased and as 
the members of both houses have grown more numerous, and 
especially as committees have increased in number, only a 
part of the business which members desire to bring forward 
can possibly be discussed ; hence there is a constant pressure 
to get the time of the House. Individual members want to 
introduce resolutions and amendments and to make speeches ; 
committees want to get their measures reported to the House 
so that they may be considered and passed ; party managers 
want to avoid questions that may hurt their party, and to bring 
to a vote questions to which the party is committed. 

The rules have now grown so numerous — forty sections in 
the Senate, filling thirty printed pages — that only those who 



§ 112] Rules. 241 

are in the habit of using them daily understand just how to 
bring up or to side-track a motion. New or slow members 
are therefore at a great disadvantage, and the houses often get 
so tangled up by their own parliamentary law that they cannot 
reach preferred measures. In 1842, for instance, a resolu- 
tion to censure Joshua R. Giddings of Ohio took such a form 
that the speaker ruled that Giddings could not, under the rules 
of the House, speak in his own defence. The speaker or, 
if the speaker be not in the chair, the speaker pro-tem, or 
the chairman of the Committee of the Whole, has the power to 
apply the rules ; and though any decision on parliamentary 
law may be overruled by a majority vote of the House, such 
action is unusual. It is possible, therefore, for the presiding 
officer to apply the rules so as to cut off or to extend debate, 
to prevent or to allow a vote ; and he may deliberately use 
that authority for party purposes. More often, however, on 
the spur of the moment he is obliged to decide complicated 
questions involving the precedents of many years ; and the 
fairest speaker may make mistakes. 

The rules of the House expire with the House ; it is com- 
mon, however, at the beginning of a new Congress to readopt 
the rules of the preceding House, and afterwards to make such 
amendments as may be necessary. The constitution makes a 
" majority of each house " — that is, a majority of all the 
members ■— the quorum necessary to do business. For many 
years the recognized method of finding out whether a majority 
were present was to call the roll ; but it had grown to be a 
custom for the minority to sit silent under roll call, so that if 
some of the majority were absent no quorum would appear. 
On January 30, 1890, a test vote showed yeas 161, nays 2, not 
voting 165 ; whereupon Speaker Reed directed the clerk to 
enter as "present" (and therefore making a quorum) some 
of the silent members whom he saw sitting before him. The 
majority then made new rules, under which the speaker had 
the definite right to count a quorum. In 1893 a new speaker, 
Judge Crisp, was endowed with substantially the same powers 

16 



242 Work of Congress. [§112 

by the former minority, and they have been continued ever 
since. 

Since i860 there has been a House Committee on Rules; 
the speaker is chairman, two members are the principal leaders 
of the majority on the floor, and the remaining two members 
are the principal leaders of the minority. On routine matters 
the committee sits as a whole ; on really serious questions the 
three majority members constitute the committee. Since 1889 
the committee has by various steps acquired the parliamentary 
right to "bring in a rule " ; which means that it may at any 
time, even when a member is speaking, make a report which 
(after one motion to adjourn has been voted down) must 
forthwith be voted upon. These so-called "rules" direct that 
the House shall take a specified bill into consideration, or shall 
come to a vote at a specified time ; that is, these three men 
practically decide what shall be the order of business ; and in 
the pressure on the time of the House, the most important 
propositions will probably not be brought to a vote if they 
refuse to "bring in a rule." 

Thus within the last fifteen years has slowly developed a 
guiding principle for the debates of Congress. The speaker 
and two members, one of whom is usually the chairman of the 
Ways and Means Committee, assume the same kind of leader- 
ship that in England is taken by the ministry. Since they can 
answer only for the lower house, the complete working-out of 
the system requires what is called the " Steering Committee," 
— an unofficial conclave of members of the Senate and the 
House, especially the three majority members of the Com- 
mittee on Rules. As guides to the majority, the Steering 
Committee practically decides what measures to press to a 
vote and what measures to drop ; from this it has been a 
short step for it also to decide what kind of party measures 
shall be introduced, and what shall be the text of those 
measures. Thus, by a roundabout, inconvenient, and rather 
irresponsible method, Congress has reached the same point as 
Parliament, — namely, that a committee which has the con- 



§ 113] Party Management. 243 

fidence of the majority of the members shall draft and present 
measures for their action. The main difference is that the 
Senate is as strong as the House, not an unequal partner like 
the House of Lords ; and it is a work of some difficulty to 
keep the majority in both houses in line on questions of 
policy. 

113. Parliamentary System and Congressional System. 

The English parliamentary system and the so-called " con- 
gressional," or committee, system are fairly rivals in represen- 
tative government. The British system has been followed 
in France, Italy, Belgium, Denmark, Sweden, and to some 
degree in Austro-Hungary ; parts of the congressional system 
are followed in Germany and Switzerland. The main differ- 
ences between the two involve the relation of the legislative 
with the executive, and the preparation of legislative measures. 
Many critics of American government hold our system inferior 
on both counts to the English responsible ministry, which is 
in effect a joint committee of the two houses, numbering about 
nineteen and possessing the confidence of the House of Com- 
mons. The ministry takes charge of both the executive and 
the legislative business of the English nation : the different 
ministers are heads of executive departments, the details of 
which are carried on by permanent chiefs ; and at the same 
time the ministry as a whole is a board for deciding on the 
executive policy of England. The ministry as a whole also 
decides what legislation shall be submitted to Parliament, 
drafts bills, fixes the order in which measures shall come up, 
and agrees on the attitude which the government will take on 
amendments offered in Parliament. If the ministry — or any 
member of it — is out-voted on any serious question, it forth- 
with resigns ; hence its supporters must squarely back it up. 

Under the congressional system, the executive business is 
nearly all out of the hands of Congress, because conducted by 
a president elected for four years, not affected by majorities 
against him in Congress, and appointing directly or indirectly 



244 Work of Congress. [§114 

all subordinate officials. The chieftains of the majority in 
Congress have no control over executive matters ; in like 
manner, the president and his cabinet are not responsible 
for legislation, and cannot introduce official measures. On 
the other hand, the president knows that he has four years 
to carry out his policy; he is therefore less subject than the 
English prime minister to temporary currents of public preju- 
dice, and he is not obliged to make concessions in order to 
remain in office. The relation between the executive and the 
legislative is much closer than appears on the surface ; for, 
besides the president's official and unofficial influence over 
legislation, the members of the cabinet appear before com- 
mittees of the House and Senate to urge the introduction 
and passage of measures which they think desirable. The 
subdivision of public business among standing committees has 
many serious drawbacks, but it is not a necessary part of the 
congressional system. 

In the long run, the congressional system works about as 
well as the parliamentary, and in some respects it works 
better ; for, where there are three parties under the parlia- 
mentary system, it is difficult to keep up a stable administra- 
tion. France during the last thirty years has had about forty 
ministries. In the United States the executive goes on steadily 
and undiminished, even if no party has a clear majority in 
the House or the Senate. 

114. Preparation of Measures. 

The preparation and introduction of measures in Congress 
is still very free. Any member may at any time deliver a bill 
to the speaker, who refers it to the appropriate committee ; 
many bills are drafted by constituents and other outsiders, who 
perhaps employ a lawyer to arrange the details of their meas- 
ure, and ask some member to introduce it ; reform associations 
of various kinds draw up bills ; labor associations draft bills 
and urge their adoption : there could not be greater freedorn 
in bringing measures to the attention of Congress. 



§ lis] Responsibility and Initiative. 245 

Many bills for the improvement of the executive or judicial 
service of the government are drafted by executive or judicial of- 
ficers, and introduced at their request by friendly members, 
or filed with committees for their consideration. Members of 
the cabinet habitually draw up bills and seek to get them 
passed, — for instance, the so-called " administrative tariff 
bill" of 1890 was largely the work of Daniel Manning, pre- 
vious secretary of the treasury. Occasionally the president 
sends a message to Congress, enclosing a bill drawn by a 
cabinet officer. 

To get a bill framed and reported is another matter. The 
actual form of the bill and, in all serious measures, its phrase- 
ology come from the committee to which it is referred, and 
are often the result of weeks and months of consideration. It 
is here that an able, steady, and sagacious member often ren- 
ders his best service, by standing up for right principles and 
for a careful and clear statement of the proposed law. Occa- 
sionally some member, usually the chairman of the committee, 
finds his name permanently attached to a bill, — as the Loud 
Post-Ofifice Bill, the Dingley Tariff Bill, the Edmunds-Tucker 
Anti-polygamy Bill. 

In early days the House and the Senate used to instruct 
committees what kind of bill to draw; and occasionally after 
discussion a bill is now recommitted with instructions. More 
often, if the committee sees that the House is dissatisfied with 
the form of a reported bill, it asks to have the bill recommitted, 
and tries to meet the objections. The great political measures, 
however, must be passed on by the steering committee before 
they can really get to the discussion point ; and no one outside 
of Congress knows exactly who is responsible for the form 
of the bill that is at last laid before the House for serious 
consideration. 

115. Influences on Congress. 

When a measure is once open for discussion, its fate depends 
upon a great variety of influences. One of the most powerful 



246 Work of Congress. [§ 115 

is the president of the United States, who not only recom- 
mends legislation in his encyclopedic annual message contain- 
ing advice on fifty different public questions, but may also 
send special messages recommending particular measures ; and 
such messages usually attract public attention. For example, 
in 1902 President Roosevelt specially addressed Congress to 
pass a bill for reciprocal trade with Cuba. 

A still more potent influence is that of the party leaders in 
and out of Congress, who constantly consult with each other 
and decide whether a particular measure will help or hurt the 
chances for the next election. This influence is communicated 
to Congress very eiifectively through the steering committee. 
Of course if the majority in either House is determined upon 
a measure, the leaders must give way or lose their influence ; 
but experience shows that the road to a member's success in 
getting measures through and in carrying elections, is to avail 
himself of the skill of leadership ; and that little progress is 
made by throwing the leaders overboard. 

Behind both organized Congress and leaders is the subtle 
force of public opinion. Members of Congress are diligent 
readers of newspapers, and are more affected by the private 
letters and telegrams of men of mark in their districts than by 
almost anything else ; hence a favorite method of influencing 
legislation is for individuals or organizations to send out cir- 
culars urging people to write to their senator or representative 
for or against some pending bill. 

A very powerful influence is the party legislative caucus, 
called in one or the other house to discuss public measures. 
The vote of the majority of the caucus is considered to bind ; 
hence members who have made up their minds not to accept 
the caucus decision usually stay away. Since the perfection of 
the steering committee, the caucus has become a less frequent 
and effective method of concentrating party votes. 

General appropriations, like the river-and- harbor and public- 
building bills, are much affected by " log rolling," — that is, a 
number of members agree each to vote for the item desired 



§ lis] Influences. 247 

by the other. Another force is the lobby, by which is meant 
those men, and sometimes women, who make it a business to 
argue with congressmen and to soUcit their votes. Some of 
these lobbyists are paid attorneys of corporations ; many of 
them are former members of Congress, who understand the 
inner workings of the body. Attorneys and counsel are often 
allowed to come before committees of Congress and to make 
formal arguments. • 

Members of Congress, like other men, are much influenced 
by the desire to please their old friends and to make new ones ; 
and votes are often given without much thought, because asked 
for by a man of influence. In many states the senators have 
such a hold on the political machine that they can prevent or 
allow the renomination of members of the House ; and this 
power gives large influence to the requests of such senators for 
votes on behalf of favorite bills. 

Legislation is affected by the president through his personal 
relations with members. Every strong president is constantly 
explaining what he desires, and why he desires it, to senators 
and representatives ; and sometimes he intimates that he will 
veto a bill if it is not modified. Some presidents threaten to 
take away the patronage of members who vote against their 
favorite schemes: thus, in i860 President Buchanan was 
accused of promising offices to the friends of members who 
would vote for the Lecompton Bill. 

Direct corruption in Congress has been very rare, though 
during the Civil War there were some actual cases of the pay- 
ment of money for votes or privileges, and during Reconstruc- 
tion three members of the House were found guilty of selling 
nominations to West Point. Occasionally members accept 
stocks and bonds as gifts, or take them over at low prices, 
with the understanding that they will make them valuable by 
voting for the pending measure. During the last thirty years, 
however, few legislative bodies in the world have been freer 
from charges of the transfer of votes for money or direct 
valuable considerations. 



248 Work of Congress. [§ 116 

116. Debate in Congress. 

A main reason for the existence of Congress is to provide a 
forum where arguments may be confronted, and, if possible, 
disproved on the spot. This great responsibility is still main- 
tained by the Senate, for under the rules of that body any sena- 
tor may speak on any question so long as he has anything to say. 

In the House of Representatives, however, it is physically 
impossible for 386 men each to express his whole mind on 
every pending question ; hence debate is limited in several 
different ways, (i) A man cannot be heard unless he gets the 
floor, and he cannot get the floor unless the speaker recog- 
nizes him. (2) Since 1847 it has been a rule of the House that 
no member shall speak more than an hour on a pending ques- 
tion, except the member in charge of the bill, who may have 
an additional hour at the close. (3) In the Committee of 
the Whole, where debate is really most active, speeches are 
limited to five minutes on each question. (4) The method of 
" bringing in a rule " cuts down to very narrow limits the 
time allowed for debate. (5) It is the habit of the man in 
charge of a measure, after a brief discussion, to move " the 
previous question," a step which cuts off debate altogether. 

He is a favored member of Congress who gets three or 
four chances in a session to make a speech long enough to 
develop a subject, and very few men have the opportunity to 
influence the House by their remarks. Hence the bad habit 
of "leave to print," which means that a member prepares a 
speech, about an hour long, to be printed in the Congres- 
sional Record without having been delivered at all. Time 
is taken from debate by the skirmishing between the chairmen 
of committees to get the floor for their bills : sometimes half 
an hour to an hour is spent simply in getting the House to 
decide which committee it will hear first. The growth of the 
steering committee tends to do away with this evil. 

Nevertheless, upon questions in which the country is deeply 
interested there is plenty of discussion : the House almost 



§ ii6] Debate. 249 

always thoroughly debates appropriation bills, perhaps because 
each has behind it a committee which has worked hard to pre- 
pare it and feels concerned to see it through. 

Partly from the Anglo-Saxon tradition of fair play, partly 
from the acknowledged power of the speaker and the presi- 
dent of the Senate, debate is usually decorous. The speaker 
enforces order by his gavel, by admonition, and if necessary by 
calling the member to order. The general rule of deliberative 
bodies is that a member who once gets the floor is entitled to 
continue his remarks until his time has expired, without inter- 
ruption ; but certain privileged committees may come in with 
their reports and cut him off, and members are subject to 
interruption by questions from other members. Some con- 
gressmen like Mr. Blaine get a reputation for adroitly parry- 
ing such attacks. At present the most effective kind of speech 
in House or Senate is that of a party man who declines to go 
all lengths with his party and expresses his individual convic- 
tions. One feature of debate in Congress is the very free 
use of extracts from books and newspapers, which are com- 
monly sent up to be read by the clerk. A few years ago a 
member thus offered in sections the whole of Mr. George's 
book. Progress and Poverty, and got it printed in the Congres- 
sio7ial Record. 

The sharpest and most effective debate is in the Committee 
of the Whole, to settle details of a bill which is likely to pass, 
the question of the formal text remaining to be settled later. 
Here, under a chairman designated by the speaker, the House 
proceeds by a somewhat simpler parliamentary procedure : 
any member may speak five minutes on the question ; if he 
has more to say, sometimes he moves to strike out the last 
word of the pending question, thus making a new issue on 
which he claims the right to speak five minutes ; when the 
discussion ends, the speaker resumes the chair and the chair- 
man reports to him what the committee has been doing. 
Votes in the Committee of the Whole are provisional ; the 
question comes up again in the House in regular session. 



250 Work of Congress. [§ 116 

The spirit of good order is apt to decline in the last hours 
of the session, when bills are hanging in the fate of which 
members are interested. All-night sessions are frequent, espe- 
cially on the night between March 3 and March 4. Every 
effort is then made to persuade the speaker to recognize par- 
ticular members ; reports of conference committees come in, 
interrupting all other proceedings; clerks and members fly back 
and forth between the houses and to the president; debate is im- 
possible; the briefest abstract of a bill is all that can be secured. 

Closely connected with the freedom of debate is the ques- 
tion of obstruction, — that is, attempts to defeat or delay a 
bill by appeal to technicalities of parliamentary law, by points 
of order, by amendments and amendments on amendments, 
by demanding yeas and nays, by motions to substitute, to lay 
on the table, to adjourn, and again to adjourn. Filibustering 
differs from obstruction only in being more systematic and 
longer continued. In the Senate it takes the form of long 
speeches : for instance, on the Federal Elections Bill, between 
December i, 1890, and March 4, 1891, there were in the 
Senate twenty-five set speeches against the bill, occupying 266 
pages of the Record, — about thrice the length of this volume, — 
one. of the speakers alone taking up 49 pages. The bill was 
killed by the announcement of the opposing senators that 
they would talk indefinitely ; and a proposed rule to permit 
the Senate to cut off debate was abandoned after nearly 
a month of time-consuming speeches. Still, a determined 
majority in the Senate can always get a vote if it insists. A 
favorite method of breaking up filibustering is to hold all- 
night sessions, the majority sometimes appearing in relays ; 
but the minority is likely to wear longer in such a contest, 
for their object is to call the attention of the country to the 
pending measure, and thus to put pressure on the majority 
members, urging them to give way. 

In the House, which is so much larger than the Senate, and 
in which tradition plays so much smaller a part, various means 
of checking filibustering have been found. The first is the 



§117] Debate. 25 1 

"previous question." In 181 2 the House adopted the prac- 
tice of permitting anybody who could get the floor to move 
" that the main question be now put." This motion is unde- 
batable, and must forthwith be put by the speaker ; if carried 
in the affirmative, debate at once ceases and the " immediate " 
— that is, the then pending — question must be voted on ; 
if amendments are pending, they may also be voted on in 
their reverse order without debate. Used at first intermit- 
tently, the " previous question " has long been a standing 
practice of the House, and it is employed not only to cut off 
tedious debate but to prevent the minority from stating to the 
world its reasons for disapproval. It is also used habitually 
to bring the House to a vote after debate is finished, lest the 
bill lose its place by some accident. 

What will control motions made simply with a view to de- 
lay ? The speaker has long been in the habit of failing to see 
a man who presumably wants to filibuster ; but he cannot safely 
refuse to give opportunities to the recognized leaders of the 
minority. In 1890 a new rule was adopted, giving the speaker 
authority in his discretion to refuse to entertain " dilatory 
motions." Under parliamentary law a motion to adjourn is 
always in order; but under the rule of 1890, which is still 
substantially in force, the speaker may refuse to entertain a 
motion to adjourn, if a similar motion has recently been made 
and lost. If, however, one fifth of the members present are 
determined upon it, and will call for the yeas and nays, they 
may insist on their constitutional right to a roll-call every time 
any proposition comes to a vote ; and thus may compel the 
other four fifths to answer to their names five, ten, or twenty 
dreary times. 

117. Amendments of Measures, and Votes. 

The fundamental right of deliberative bodies is not only to 
discuss, but also to alter, propositions before them ; hence 
every bill brought before Congress is subject to changes which 
perhaps may totally alter its character. Under the rules of 



252 Work of Congress. [§117 

the House, no amendment can be offered that is not " ger- 
mane " to the subject of the bill. This limitation is intended 
to prevent the grafting of one proposition upon a very different 
one ; it was introduced to prevent the system of legislative 
"riders," — that is, of adding to a bill clauses which could not 
pass on their merits, expecting the other house and the presi- 
dent to let them go rather than to defeat the whole measure. 

On great bills, like an Interstate Commerce Act or a Tariff 
Act, hundreds of amendments may be filed. A bill is fre- 
quently recommitted, so that the committee may incorporate 
such amendments as it favors ; or, in order to meet objections, 
amendments are prepared in the committee and reported by 
the chairman. It is a duty of party management to prevent a 
part of the majority from joining with the minority in an im- 
portant amendment ; for it is evident that such a practice 
would quickly destroy party cohesion ; hence members who 
really desire changes in a bill try to bring them about by remon- 
strating with those who have the bill in charge. The tariff bills 
of late years have gone through the House in almost exactly 
the form in which they were reported, parliamentary devices 
being found for shutting off the amendments not accepted by 
the committee in charge. A favorite method of defeating bills 
is to move at the last moment to strike out the enacting clauses, 
a motion which, if carried, stops debate and ends the subject. 

Votes in Congress are taken in four ways : — ( i ) By the 
" ayes and noes," the presiding officer deciding according to 
the sound of the voices. This is convenient for ordinary 
questions, where the vote is not very close. (2) If anybody 
doubts the vote, there is a " division " : those in favor rise and 
are counted, and then those opposed rise and are counted. 

(3) In vote by "tellers" those on the affirmative and those 
on the negative each file between two tellers, who count the 
numbers. The advantage of this system is that it gives time 
to call up members from the lobby and committee rooms. 

(4) More formal is vote by "yeas and nays," in which the 
clerk calls the roll and each member as his name is called an- 



§ 117] Amendments. 253 

swers "aye" or "no." The importance of the yeas and nays 
is that they are recorded in the journals, and are always open 
to the inspection of constituents. 

Under the rules of the House and Senate, no bill can be 
passed unless it has been read three times on different days ; 
but there are two methods of expediting business, (i) The 
rules may be suspended by a two-thirds vote, so that the bill 
may go through its various stages in a single day. (2) Almost 
anything can be done if nobody objects : a very large part of 
the routine business in both houses is actually performed while 
there is no quorum in the hall, and this goes on till the point 
of no quorum is raised. In 1895, for instance, a bill was in- 
troduced in the House of Representatives, and passed through 
all its stages in a few minutes, appropriating $50,000 for the 
Venezuela Commission, no member thinking it advisable to 
lodge an objection. So well understood is this practice that a 
few years ago, when two members of the House agreed that 
they would object to everything until certain concessions were 
made to them, they actually compelled the speaker and all the 
other members of Congress to placate them. 

A bill which has passed one house is then " engrossed," — 
that is, drawn up in fair copy with all the adopted amendments 
inserted ; but in order to become law it must be absolutely 
agreed to by the other house, without the difference of a word 
or a comma ; and each house is free to amend the bills of the 
other. How shall the two houses be brought together? Send- 
ing the bills back and forth is a tedious process, and is apt to 
increase the trouble. The ordinary solution is to appoint a 
committee of conference, composed of members of both houses, 
who try to find a middle ground. One side gives way on some 
of its amendments, the other side on some of its claims ; and 
if an agreement be reached it is reported to both houses. 
There is usually little debate on conference reports ; if either 
house is still dissatisfied, it refuses to accede and demands a 
new conference. Technically, the conference committees may 
only consider the two forms of the bill as they come from the 



254 Work of Congress. [§ nS 

two houses ; actually, they frequently make up a bill including 
clauses which have been accepted by neither house. Thus, 
the tariff act of 1883 was practically framed by the conference 
comiTiittee. 

When the two houses come to an understanding, an " en- 
rolled" copy of the bill is prepared and signed by the speaker 
of the House and the president of the Senate ; and it then goes 
to the president. 

The system of the steering committee tends to harmonize 
the two houses, by introducing bills which it is known before- 
hand will be accepted in both ; but it also tends to take away 
the feeling of individual responsibiUty, and to prevent either 
house from a fair attempt to draw up a satisfactory bill by the 
old-fashioned process of trying various amendments until the 
bill reflects the majority opinion. On all large questions there 
is time enough for debate, or would be if the houses did not 
spend so much time on private bills. The main reason for a 
lack of thoroughness in the House, and to a great degree in 
the Senate, is that both have too much petty business in hand 
to do the great business properly. 

118. The Presidential Veto. 

A joint vote of both houses of Congress does not make a 
statute, for the president must still be consulted as part of the 
legislative power. When a bill is sent to the president, he may 
do one of four things : — (i) He may sign it, whereupon it 
forthwith becomes law ; and this is what happens to most bills. 
(2) He may simply leave it unsigned, and at the end of ten 
days, if Congress has not meanwhile adjourned, it becomes 
law and is entered in the statute-book accordingly. (3) He 
may veto the bill, and send it back to the house in which it 
originated, with his written reasons against it. (4) By the so- 
called "pocket veto," the president refuses to sign a bill sent 
within ten days before adjournment, and at the next session of 
Congress sends in a statement of his reasons for refusing. A 
fifth method — the approval of a bill by the president after 



§ ii8] Presidential Veto. 255 

Congress has adjourned — was used once by President Lincoln, 
and is common enough in the states ; but it is now an unwrit- 
ten principle that all congressional bills still unsigned at ad- 
journment are dead. 

The presidential veto has been exercised nearly 450 times in 
the history of the government. The only presidents who lived 
through their terms without using this power were John Adams, 
Jefferson, and John Quincy Adams. The first president to 
make a systematic use of the veto was Jackson, who vetoed 
1 2 bills. President Johnson vetoed 2 1 bills, nearly all of which 
were carried over his veto by the constitutional two-thirds 
majority. President Grant fearlessly used his veto 43 times. 
President Cleveland in his first administration sent in 30 1 vetoes, 
nearly all of them of pension, relief, and public-building bills, 
almost none of which were passed over his veto. 

The president's veto is simply suspensive : a vetoed measure 
is again submitted to a vote, just as it stands, and if it then 
receives a two-thirds majority in both houses it becomes a law. 
Outside of Jackson's and Johnson's administrations, however, 
only half a dozen measures have ever been passed over the presi- 
dent's veto, so that it is almost as effective as if absolute. 
Indeed, the fear of the presidential veto frequently causes bills 
to be modified to meet supposed objections; on the other hand, 
measures are sometimes allowed to pass both houses in the ex- 
pectation that the president will have the courage to veto them. 

The president's veto power is undoubtedly salutary, both 
because it is an additional check on ill-considered legislation, 
and because the president keeps in mind the treaty obligations 
of the government: for example, in 1879, President Hayes 
successfully vetoed a bill restricting Chinese immigration, and 
set on foot negotiations to make such a bill possible with- 
out violation of our pledges. The president also protects his 
own prerogative by his veto power: thus, in 1876 President 
Grant vetoed a bill discontinuing certain diplomatic offices, 
for he argued that only the executive could designate public 
ministers. The president habitually consults with members of 



256 Work of Congress. [§ "9 

his cabinet on bills which affect their offices : for instance, in 
1882 President Arthur vetoed a river-and-harbor bill on the 
advice of Robert Lincoln, secretary of war, under whom the 
money was to be spent. The main defect in the federal veto 
power is that the president has no power to disallow separate 
items in an appropriation bill, a power possessed and exercised 
by many state governors. 

119. Output of National Legislation. 

The number of actual statutes which went through all the 
forms in the first Congress (1789-1791) was 115; in the 
fifty-sixth Congress (i 899-1 901), 1,881. This large increase 
is due in part to the expansion of the country in territory and 
in population ; in part to the enormous material growth of the 
country, bringing in new subjects for legislation, such as rail- 
roads, steamships, and telegraphs ; in part to the congressional 
habit of constantly making small amendments to preexisting 
laws ; but above all to the great number of private and petty 
bills passed by Congress. Of the 1,881 statutes put on the 
statute-book from 1899 to 1901, 1,498 are classified in the 
statutes as "private," 211 more are appropriation or other 
bills temporary in their nature, leaving only 172 measures 
which concern the permanent public service or interests. 

Starding as is this legislative output, it represents only a 
fraction of the measures introduced into Congress. In 1899- 
1901, 6,236 Senate bills and resolutions and 14,657 House 
bills and resolutions were actually presented and pigeon-holed 
somewhere in the Capitol. Less than one bill in ten gets 
through at all; and of the public measures, most are so 
mauled in debate, and in the passage through conference, 
that they are very unlike the original propositions. The 
public statutes accumulate so fast that in 1878 Congress en- 
acted the "Revised Statutes," a codification of the laws then 
standing on the statute-book, leaving out temporary, expired, 
and repealed laws. It is now time to incorporate with that 
work the permanent laws of the last twenty-five years. 



§ 119] Legislative Output. 257 

The reason for the private bill is that occasional cases occur 
which are not sufficiently provided for by the general laws. A 
claimant for a pension, for instance, lacks some element of the 
necessary legal proof, although otherwise he possesses a good 
case ; this may be a re.asonable subject for a private bill, yet 
Congress is a very unfit body to examine such small questions. 
Private bills are really introduced by members as a favor or a 
justice to their constituents, and they require much personal 
attention in order to prevent the professional objector or the 
speaker from ruling them out. Until about 1854 Congress 
was plagued by private bills for the advantage of claimants 
under contracts ; in that year it created a Court of Claims, 
which makes a judicial examination of such matters and 
reports its findings to Congress. Some such tribunal ought to 
be erected for most of the matters which now come within the 
private bills. 

In this review of the legislative department and its work, it 
has been necessary to direct attention to practices which im- 
pede good legislation. Criticism, however deserved, must not 
obscure the larger truth that Congress does fairly reflect the 
public opinion of the country at large, though somewhat slow 
to respond to changes of popular desire. The chief defects of 
Congress arise from the great number of members and from 
the great mass of business. The committee system, with all 
its drawbacks, disposes of and kills off many undesirable 
measures. The gradual establishment of the power and re- 
sponsibihty of the speaker, and the unwritten influence of the 
steering committee, make the House still a legislative body ; 
and the House and Senate are kept in reasonable adjustment 
with each other. Congress is a more efficient body than 
almost any state legislature, is less subject to personal influ- 
ences, and is less controlled by a few political leaders acting 
for personal ends. The main trouble in Congress is lack of 
time, and that is due partly to private-bill legislation, and 
partly to the pressure on the time of members to obtain 
office for constituents and supporters. 

17 



CHAPTER XV. 

THE PRESIDENT. 

120. References. 

Bibliography: Brookings and Ringwalt, Briefs for Debate (1896), 
No. 12 ; E. C. Mason, Veto Power (189c), 219-221 ; A. B. Hart, Founda- 
tions of Am. Foreign Policy (1901), §§ 78, 79 ; A. B. Hart, Manual (l()Q?>), 
§§ 109, no, 292 ; E. McClain ; Constitutional Law {\(p^, § 37 ; Channing 
and Hart, Guide (1896), § 157. 

Choice of the President: E. Stanwood, Hist, of the Presidency 
(1898) ; A. B. Hart, Practical Essays (1893), No. 3 ; J. Bryce, Am. Com- 
monwealth (ed. 1901), I, ch. viii ; J. H. Dougherty, Electoral System 
(1906) ; E. McClain, Constitutional Law (1905), § 40. 

The Presidency in General : J. A. Woodburn, Am. Republic 
(1904), ch. iii ; E. McClain, Constitutional Law (1905), §§ 41, 120; R. B 
Mosher, Executive Register (igo^) ; H. Miinsterberg, Americans {K^oi^) 
ch. iii; R. L. Ashley, A}}i. Federal State (1902), ch. xiv ; B. A. Hinsdale, 
Am. Government (rev. ed., 1895), chs. xxviii-xxxiii ; G. S. Boutwell, Con- 
stitution (1895), chs. xxxii-xxxv, Ixi ; J. Bryce, Am, Commonwealth (ed 
1901), I, chs. v-viii; H. J. Ford, Am. Politics (1898), ch. xxii ; F. J 
Goodnow, Administrative Law (1905), Book II, ch. i ; J.R. Tucker, Con 
stitution (1899), II> ch. xii ; W. Wilson, 77^^? State (rev. ed., 1900), §§ 1323- 
1351 ; H. C. Lockwood, Abolition of the Presidency (1884) ; T. M. Cooley, 
Constitutional Law (1898), ch. v. 

Functions of the President : F. J. Goodnow, Administrative Law 
(1905), Book II, ch. iii, pt. i; E. McClain, Constitutional Law (1905), 
§§ 122-136; J. A. Fairlie, National A dministratioit {iqo^, chs. i, ii; E. C. 
Mason, Veto Power (1890) ; H.C. Lockwood, Abolition of the Presidency, 
(1884); W. Whiting, War Powers (1871), 66-83, 159-325 ; A. Conkling, 
Powers of the Executive Department (i?&2) ; B. Harrison, This Country 
of Ours ( 1898), chs. iv-xix ; A. B. Hart, Practical Essays ( 1893), No. 4. — 
Sources: J. D. Richardson, Messages of the Presidents (1896-1899); 
L. M. Salmon, Appointing Power (1903); A. Conkling, Powers of the 
Executive Department (1882). See also references to chs. xvi, xx, xxiii, 
XXV, xxxi below. 

258 



§ i2i] History of the Presidency. 259 

121. History of the Presidency. 

That one person should stand at the head of the state is 
natural in a monarchical government, and has often been the 
practice of republics ; but it is not the only or the obvious 
method. The Federal Convention found it a difficult matter 
to provide a single-headed executive which should be free from 
control by Congress. For weeks the idea of an executive 
council was discussed ; then the Convention declared for an 
election by Congress ; and at last it decided for a single execu- 
tive, chosen by indirect popular election. 

The presidency has in a century changed from what the 
Convention had in mind. The growth of the republic has 
thrown new responsibility upon the president ; the cabinet 
has grown up, and has gained strength as time went on ; and, 
in passing from individual to individual, the traditions of the 
presidency have been well transmitted and often expanded. 

From 1789 to 1903 there have been twenty-five presidents 
of the United States, most of whom have set an impress upon 
the office. Washington, from 1789 to 1797, made the first 
series of appointments, established the first relations with Con- 
gress, inaugurated a foreign policy, and began the use of the 
veto power. Such was the popular confidence in the president 
that he carried through nearly every policy which he publicly 
advocated ; and, although bitterly maligned by the opposition 
press, he retained the love and confidence of the country to 
the end of his administration. John Adams, from 1797 to 
1 80 1, was a party president, at odds with the opposition and 
engaged in quarrels with a large faction of his own party. He 
added little to the president's power, except that he dismissed 
a member of the cabinet outright and thus created a valuable 
precedent. 

Jefferson's presidency, from 1801 to 1809, had an unex- 
pected effect on the development of the office. Jefferson 
believed in reducing federal powers to the lowest point pos- 
sible, and he naturally favored legislative authority as opposed 



26o The President. [§ 121 

to one-man power. Yet no president from that day to this has 
ever had such unquestioned influence over Congress : in both 
foreign and domestic affairs he asserted the primacy of the 
president. Madison and Monroe were both men of less 
dominant temperament ; and John Quincy Adams was so 
hampered by the refusal of Congress to accept any policy 
which he ardently advocated, that the power of his office 
declined in spite of all his efforts. 

The diminishing of the prestige of the presidency was 
checked by the next president, Andrew Jackson, from 1829 
to 1837. Jackson broke loose, was the first president to 
employ his veto power frequently and with determination, and 
ended by converting a hostile majority in both houses into a 
party majority in his favor. 

Van Buren, Harrison, and Tyler added nothing to the power 
of the president, and Tyler weakened it by dissensions with 
Congress, Polk, however, from 1845 to 1849, ^^.s one of the 
most forceful of all American presidents, and the first to show 
the immense power which may be exercised by the president 
in time of war. His successors, Taylor, Fillmore, Pierce, and 
Buchanan, raised neither the prestige nor the power of the 
presidency. Pierce was the weakest of all the American presi- 
dents, and much under the influence of his cabinet officers ; 
and Buchanan at the end of his administration became involved 
in the secession controversy, in which both sides thought he 
showed weakness and indecision. 

The greatest of American presidents was Lincoln, who came 
to the office less experienced in public affairs than any prede- 
cessor. His success in trying circumstances is the proof of his 
genius. He made head against Congress at a time when that 
body was seizing new powers ; and above all presidents he 
secured the confidence of the people. He raised the presi- 
dency to its highest point of power and responsibility, and 
was allowed so to raise it because people knew that he would 
give up his war powers when the war ended. 

Andrew Johnson inherited all the difficulties of the Civil 



§ 122] History. 261 

War without any of Lincoln's gifts. The House of Representa- 
tives demanded his impeachment, and the Senate lacked but 
one vote of the two thirds necessary to remove him from office, 
and thus to make the presidency forever dependent on Con- 
gress. General Grant, from 1869 to 1877, was a better presi- 
dent than either his friends or his enemies realized. He was 
the first president to take interest in the improvement of the 
national civil service, and he used his veto oftener than any 
president who had preceded him. 

President Haj'es, by his veto of appropriation bills bearing 
riders, nearly broke up the practice of riders. President Gar- 
field died in the midst of a contest for the dignity of his office. 
Under President Arthur an efficient civil service act was put 
into execution. President Cleveland, from 1885 to 1889, and 
again from 1893 to 1897, showed a strong determination to 
preserve the accumulated prerogatives of the presidency ; he 
vetoed a large number of private bills, and continued President 
Arthur's policy of slowly improving the civil service. President 
Harrison, from 1889 to 1893, was out of touch with Congress, 
and could not add to the power of his office. 

President McKinley, from 1897 to 1901, was more like 
Jefferson than any other president, in his quiet control over 
Congress and his dealing with out-lying possessions. At the 
time of his death, on September 14, he was one of the strong- 
est and most powerful presidents that had ever occupied the 
White House. President Roosevelt has a popular support 
and confidence granted to few of his predecessors. 

122, The Choice of the President. 

In the Federal Convention, many suggestions were made as 
to the election of the president, — that he should be chosen 
by Congress, by the people at large, by the Senate, by electors. 
Eventually the last of these methods, although almost unknown 
in the states, was chosen, because every other method was 
more inconvenient. By a direct popular election, large ma- 
jorities concentrated in a few states might bring in a president 



262 The President. [§ 122 

who was unpopular in most of the country ; and election by 
Congress would almost certainly mean such previous pledges 
by the successful candidate as would leave him at the mercy 
of the legislative department. 

The method of choice by electors has some difficulties. 
How shall electors be chosen? The constitution provides 
simply " that each state shall appoint in such manner as the 
legislature thereof may direct " its quota of electors. For 
many years electors in some states were chosen by the legisla- 
ture, — as late as 1876 by the legislature of Colorado; but 
ever since 1792 it was more common to choose them by pop- 
ular vote. Shall they be chosen by districts, like members of 
Congress? This was the practice in Maryland for many 
years, and was tried in Michigan in 1892. The method at 
present, however, is that all the electors from a particular 
state shall be chosen together by one plurality. Hence in 
the election of 1884, by a majority of about 1,000, the thirty- 
six electoral votes in New York were cast for Mr. Cleveland, 
and thereby Mr. Blaine was defeated for president. 

The voters in presidential elections are the same as 
the voters for the more numerous branch of the state legisla- 
ture. From 1870 to 1894 there was a system of protecting 
the polls by federal inspectors; at present the conduct of 
presidential elections is left wholly to the state authorities. In 
early times the choice of electors did not necessarily come on 
the same day throughout the country, but in 1845 Congress 
prescribed the Tuesday after the first Monday in November. 
It is a day of great excitement, and few elections call out such 
a large proportion of the voters. The machinery for report- 
ing the count is now so nearly perfect that within five or six 
hours after the polls have closed the result of the contest is 
usually known throughout the country. 

Strictly speaking, there is no election in November, — only 
a choice of a certain number of persons in each state who are 
empowered to elect a president. The original thought was 
that the electors would act irrespective of party : but in the 



§ 122] Choice. 263 

third election, of 1796, it was understood beforehand that the 
FederaUst electors would vote for Adams and the Republican- 
Democratic electors for Jefferson ; and in the twenty-six presi- 
dential elections since that time there is no case of an elector 
who has cast his ballot in opposition to the expectation of 
those who voted for him. The electors, therefore, are really 
so many counters, — three for Delaware, thirty-nine for New 
York, and so on. 

The indirect system is intended to avoid a danger. Each 
state has as many electors as it has senators and representa- 
tives, and hence no president can be chosen who has not 
friends and supporters in about half the states in the Union : 
there cannot be such a thing as a New England president, or 
a Middle-state president, or a Southern president, or a West- 
ern president. Furthermore, the system avoids a great temp- 
tation to electoral frauds in the strong party states. In the 
election of 1900, Pennsylvania had 252,000 majority for 
McKinley, and Texas 121,000 majority for Bryan. Those re- 
turns might have been raised to almost any figure, if more 
votes could have designated more electors ; but no manipula- 
tion could carry more than 32 electors for Pennsylvania, and 
15 electors for Texas. 

(i) These so-called "electoral colleges," chosen in Novem- 
ber, meet, one in each state, on the second Monday in January, 
cast their ballots, and despatch certified copies of the returns 
to Washington ; on the second Wednesday in February Con- 
gress meets to count the votes. The constitution provides 
only that the "votes shall then be counted." In 1877, when 
the electoral result was very close, the question whether the 
vote was to be counted by the Senate officers, or by joint 
agreement of the two houses, was all- important. Four states 
each sent in two rival returns. The majority of the House 
was Democratic and favored one set of returns, and the ma- 
jority of the Senate was Republican and favored the other ; 
whereupon the controversy became so bitter that a special act 
of Congress was passed creating an electoral commission (un- 



264 The President. [§ 122 

known to the constitution) of five senators, five members of 
the House, and five justices of the Supreme Court. In this 
commission of fifteen, by a vote of 8 to 7, the RepubUcan 
return from each of the four states was received ; and Mr. 
Hayes was declared elected by 185 to 184 electoral votes. 
In 1887, to prevent such controversy. Congress passed an act 
for the count of the electoral votes, of which the principle is 
that, if there is only one return from a state, it is to be received 
unless the two houses unite in throwing it out ; if there are 
two sets of returns, that one is to be received which has the 
certificate of a state tribunal appointed to canvass the vote, — 
that is, it is left to state authority to decide whether the 
electoral votes are cast by the electors who have been duly 
chosen. 

(2) If there is no majority of all the electoral votes, the 
president is elected by another method : the constitution pro- 
vides that the House of Representatives shall elect one from 
the three highest on the list, the majority of members from 
each state taken together casting one vote. Only twice has 
this method been used, and both times it has led to serious 
trouble. In the election of 1800, the Republican-Democrats 
intended that Jefferson should lead, and that Burr with the 
next highest vote should become vice-president ; each, how- 
ever, had 73 votes, and there was no constitutional election. 
With difficulty Jefferson was at last elected by the House in 
1 80 1. Under the twelfth constitutional amendment (which 
was at once introduced, and in 1804 became part of the con- 
stitution), the president and vice-president are now voted for 
separately, and such a deadlock cannot be repeated. The 
other House election was in 1824, when out of the three candi- 
dates — Jackson, Adams, and Crawford — John Quincy Adams 
was chosen by the House, voting by states. 

(3) A third method of becoming president is through the 
death or inability of the president, when constitutionally the 
vice-president assumes the ofiice. Five times has this unhappy 
contingency come to pass. By the death of Harrison, April 4, 



§ 122] Choice. 265 

1841, John Tyler became president; by the death of Taylor, 
July 9, 1850, Millard Fillmore became president; by the 
assassination and death of Lincoln, April 15, 1865, of Garfield, 
September 19, 1881, and of McKinley, September 14, 1901, 
Andrew Johnson, Chester A. Arthur, and Theodore Roosevelt 
respectively became presidents. Under constitutional author- 
ity to provide for the succession in case of the death or in- 
ability of both president and vice-president, in 1792 Congress 
enacted that the president pro-tem of the Senate should be 
next in succession, and after him the speaker of the House, a 
new election to follow within two months. January ig, 1886, 
Congress passed a much better law, which provides that the 
succession after the vice-president shall be secretary of state, 
secretary of the treasury, secretary of war, attorney-general, 
postmaster-general, secretary of the navy, and secretary of the 
interior. This makes in all nine persons, and it is hardly con- 
ceivable that every one of these nine should die or become 
disabled at the same time. There is no provision in this 
statute for a new election, and hence a president who thus gets 
into office serves out the remainder of the term. 

The term of the president begins at noon on the fourth of 
March, and runs for four years. Washington was reelected, 
and might have had a third term ; and every president there- 
after until 1 84 1 was a candidate for reelection: John Adams, 
John Quincy Adams, and Van Buren were defeated ; Jefferson, 
Madison, Monroe, and Jackson were elected. From 1841 to 
1 86 1 no president was renominated. 

From 1 86 1 to 1901 there were four cases of double terms, 
— Lincoln, Grant, Cleveland, and McKinley. Lincoln died 
at the beginning of his second term ; Cleveland was re- 
nominated and defeated in 1888, again nominated and 
elected in 1892 ; Harrison was renominated in 1892, but 
lost the election. In general, a president of great force of 
character desires a renomination and is likely to get it. Jef- 
ferson, like Washington, retired at the end of a second term, 
and thereby set a precedent which has ever since been fol- 



266 The President. [§ 122 

lowed. An effort was made to renominate Grant for a third 
term in 1880, four years after the end of his second term, but 
it failed ; and the country is now absolutely set against third 
presidential terms under any circumstances. 

The president and vice-president are the only officers of the 
United States who must be native-born citizens; they must 
also be thirty-five years of age, and must have resided four- 
teen years in the country. The unwritten qualifications are 
not so precise. With very few exceptions, the presidents have 
been men of long public service and high national reputation : 
John Adams and Jefferson had been vice-presidents ; Jefferson, 
Madison, Monroe, and John Quincy Adams had all been 
secretaries of state ; Jackson, William H. Harrison, and Grant 
got their reputation chiefly through their military service ; Van 
Buren and Buchanan had served as senators and as secretaries 
of state ; Polk had been speaker of the House and governor 
of Tennessee ; Presidents Hayes and Cleveland got their rep- 
utations principally as governors of close states ; Garfield and 
McKinley had had long and honorable experience in the 
House of Representatives, in which Pierce also had seen ser- 
vice ; Lincoln had served a term in the House, but had made 
no reputation there, and owed his nomination to his joint de- 
bates with Stephen A. Douglas. Of the vice-presidents who 
have succeeded to the presidency, Tyler had been senator 
from Virginia, Johnson mihtary governor of Tennessee, Fill- 
more had been in Congress, and Arthur had had experience 
in minor executive federal offices only. President Roosevelt 
had been civil service commissioner, assistant secretary of the 
navy, and governor of New York. 

In general, the road to the presidency is through long 
public service, both because that inspires public confidence 
and because it makes a candidate widely acquainted. Most 
presidents are good public speakers ; no man has ever been 
elected against whom there was any suspicion of integrity ; 
and with few exceptions the presidents have shown themselves 
men of high public spirit. 



§ 123] Life in Washington. 267 

123. The President's Life in Washington. 

After the November election, it is customary for the suc- 
cessful candidate to remain quietly at home ; he confers 
with members of his party, makes up his cabinet list, and 
decides on appointments. In February he commonly goes to 
Washington; Lincoln on his way thither, in 1861, made a 
series of public speeches intended to reassure the country. 
The few days or weeks before inauguration are occupied 
chiefly with office-seekers and the preparation of the in- 
augural address. On March 4 the outgoing president escorts 
his successor to the Capitol, where the new president takes 
oath to the constitution and makes his address. He then 
calls a special session of the Senate, and begins his ad- 
ministration. 

In Washington the president lives in the White House, a 
stately building beautifully situated on a rise which sweeps 
down to the Potomac flats, with superb drawing-rooms used 
for the entertainment of visitors. Every president from John 
Adams has made it his residence in Washington. In 1902 a 
separate building was constructed for the executive offices, and 
the White House was restored and made a convenient family 
and official residence. 

The etiquette of the presidential office is simple : it is not 
expected that other people will sit while the president is stand- 
ing, or talk when he has something to say ; but that is about 
all. Nearly all presidents are free of access : any well-con- 
ducted and clean person who can show the doorkeepers that 
he has some actual business with the president may enter ; and 
if he has introductions from some responsible person, or can 
make his business clear enough to a secretary, the president 
will receive him. Large numbers of people, including whole 
visiting societies or their delegations, go to pay their respects 
at the White House. Members of the cabinet have the entree 
of the president's office at all times, and many senators and 
members of the House have an equally undisturbed privilege 



268 The President. [§ 123 

of access for themselves and their constituents and friends. 
Indeed, presidents sometimes find it hard to get their meals 
because of the pressure of callers. 

The first two presidents set up a formal system of receptions 
and levees ; but Jefferson inaugurated what he called " repub- 
lican simplicity," which reached such a point that he received 
the minister of Great Britain, when he came to make an offi- 
cial visit, by opening the door himself, wearing brown stock- 
ings not entirely clean, and slippers down at the heel. Since 
his time most presidents have kept up a dignified social life. 
Family and personal friends who visit Washington are often 
invited informally to the family meals ; and there are numer- 
ous state dinners at which the guests are foreign diplomats, 
members of the Senate and the House, and civil, military, and 
judicial officers. Presidents rarely make visits or calls in 
Washington ; but an invitation to the White House always 
supersedes any other engagement. 

Most presidents go away from Washington for a part of the 
summer; and since the time of Washington they have been 
in the habit of making long journeys to distant parts of the 
Union, often speaking freely to great numbers of people on 
the way. President Jackson came to New England in 1833, 
and was received with enthusiasm. The long trips give one 
of the best opportunities for people to get acquainted with the 
president. From time to time he holds a public levee at the 
White House, to which respectable people are freely admitted ; 
and it is an absurd and fatiguing custom that he must shake 
hands with each of these visitors. 

From 1789 to 1800 the president made a formal speech at 
the opening of Congress ; but now he never officially com- 
municates with Congress in any other way than by a written 
message. The correspondents of the great newspapers come 
daily to the White House, and a secretary gives them any 
information which the president desires to have circulated ; 
and in addition they put into their despatches what they 
learn from senators, cabinet officers, and other public men. 



§ i24j Functions. 269 

It is the policy of most presidents to keep the public in- 
formed ; in fact, most acts of the president, outside of diplo- 
macy, are necessarily known to so many executive officials 
that they could not be kept secret if it were so desired. 

With his cabinet a wise president is in constant communi- 
cation, for they are the feelers through which he realizes pub- 
lic opinion ; he also confers with the public men in his own 
party, and often with the opposition : from day to day he is 
holding council with dozens of people in and out of public 
life. He is the recipient of correspondence, often reaching a 
thousand letters a day, from people known and unknown to him. 
Countless gifts pour into the White House from all over the 
country, most of which have to be declined. The president 
has a force of stenographers and clerks, and an official private 
secretary, whose office is practically that of personal and con- 
fidential adviser. 

124. Functions of the President. 

The duties and privileges of the president are stated in 
general terms in the constitution. He receives a compensa- 
tion fixed by Congress : the first salary act of 1 790 made the 
salary of the president ^25,000 a year, a sum far larger than 
any annual amount then paid by individuals or corporations ; 
in 187 1 the salary was raised to ^50,000 a year, which is 
barely adequate for the dignified maintenance of the office. 
In addition, Congress appropriates for the care and repair 
of the executive mansion, — for lights, stable, hot-house, fuel, 
and steward's salary. If the president wishes to make a trip 
by sea, a government vessel is placed at his disposal ; but the 
supplies and servants, both for the White House and for such 
excursions, are paid for out of the president's income. 

The powers of the president will appear in detail in the 
discussion of the functions of government. They may be 
briefly summarized as follows : — As commander-in-chief of 
the army and navy, he has large authority in time of peace, 
for he appoints, commissions, and assigns officers ; and in 



270 The President. [§ 125 

time of war he is the mihtary chief. By his general appoint- 
ing power he designates foreign ministers and consuls, judges 
of the Supreme Court, and all other important officers. This 
power, combined with the power of removal, which does not 
require consent of the Senate, centralizes and unifies the whole 
hierarchy of executive officers. The president's power over 
ordinary legislation has already been discussed ; in addition 
he directs foreign relations, and submits treaties for ratifica- 
tion. In judicial matters the president has the power to par- 
don any offences, except in cases of impeachment. One of 
the most important functions of the president is to " take care 
that the laws be faithfully executed." Under this power he 
has general oversight over the whole executive service ; 
through the attorney-general's office he also keeps watch of 
the courts ; and in case the execution of the laws is obstructed 
by mobs, riots, or insurrections, he may use the militia or 
regular military and naval forces to maintain the supremacy of 
the law. He may also call the attention of Congress to laws 
which are inadequate for their purposes. 

125. Presidential Appointing Power. 

Manifestly, the president must exercise many of his functions 
through other executive officers of the government, and the 
selection of them is one of his most important functions. In 
1787 the states committed such appointments chiefly to the 
legislatures ; it is therefore remarkable that in the Federal 
Convention the power of appointment was given to the presi- 
dent, with the confirmation of the Senate. 

In order to make a vaUd appointment, there must first of all 
be an office to fill ; and the existence, title, and salary of the 
office are settled by Congress, — the term also, except in the case 
of judges and military and naval officers. The single excep- 
tion is that the president may appoint commissioners to get 
information for him, especially on diplomatic subjects ; but in 
such cases no salary can be paid without the authority of 
Congress, 



§ 125] Appointing Power. 271 

The next step is for the president to designate some person 
to fill the office, which he does ordinarily by a special message 
to the Senate, giving the name of the man and of the state 
from which he comes, and the cause of the vacancy. The 
appointment is usually referred to a committee, which is often 
slow in acting, but in due time reports either for or against 
confirmation. The matter is then brought before the Senate 
in secret session, and a vote is taken, often after discussion ; if 
a majority of the members voting are in favor, the appoint- 
ment is then completed. The president, however, has still to 
issue the commission, and if he refuses to do so it is practically 
an annulment of the appointment. 

The Senate has repeatedly attempted to get from the presi- 
dent written information before confirming nominations, and 
several presidents — among them Jackson and Cleveland — 
have roundly refused to submit papers for that purpose. In 
practice, many nominations fail of confirmation : in Jackson's 
administration one nomination had no votes in favor, and 46 
votes against it ; Tyler sent in the nomination of Caleb Cush- 
ing as secretary of the treasury three times in two days, and 
confirmation was refused each time. 

The practice called "senatorial courtesy" greatly affects con- 
firmation. It has two meanings: (i) that a senator or an 
ex-senator will be confirmed without question; (2) that im- 
portant appointments to federal office within a state will not be 
confirmed against the objection of the senators from that state, 
if of the same political party as the president. This often means 
that the president must nominate a man designated before- 
hand by a senator, or declared by him to be acceptable. 

To the process of confirmation there are two exceptions, 
(i) If the Senate is not in session, the president has the con- 
stitutional power to make temporary appointments, to cease at 
the end of the next session of the Senate if not confirmed by 
that body. It is of course possible, but unusual, for the presi- 
dent to reappoint the same man the moment the Senate ad- 
journs. (2) Congress has constitutional power to authorize the 



272 The President. [§ 125 

president to make certain appointments without confirma- 
tion by the Senate, — for instance, that of the Ubrarian of 
Congress. 

Many influences are brought to bear upon the president, 
(i) He uses his own personal knowledge of men, so far as it 
goes. Washington, for instance, knew all the military, and 
most of the civil, officers of the Revolution, and was therefore 
able to make intelligent appointments. (2) Even Washington, 
however, was from the first obliged to depend, for his knowl- 
edge of the character and capacity of candidates, upon the in- 
formation of other people, especially upon that of members of 
the House and Senate who were at the seat of government and 
at the same time in touch with their constituents. (3) Sen- 
ators and representatives of the same party as the president 
become the natural distributors of the patronage ; and, so long 
as the president insists that the persons so suggested shall be 
men of character and fitness, this method does not work ill. 
(4) If the members of Congress from a state or a district are 
among the political opponents of the president, somebody else 
— a former member of Congress, or a leading politician — is 
recognized as the person whose recommendation receives most 
attention. (5) The president is subject to strong pressure 
from candidates and the friends of candidates, who write let- 
ters and send delegations. He receives the papers and takes 
them into consideration. 

Since Congress is a body containing many distinguished men, 
it is natural that members should often be selected for execu- 
tive offices. There is a constitutional provision that no senator 
or representative shall, during the time for which he is elected, 
be appointed to any office which has been created, or the 
emoluments increased, during such time ; and that no person 
holding office under the United States shall be a member of 
either house. This provision absolutely prevents anything like 
the parliamentary system, under which the great executive 
officers are also habitually members of one or the other house. 
Whenever a member of Congress is appointed to office, his 



§ 126] Relations with Congress. 273 

acceptance is considered a resignation of his place in Congress. 
In about thirty cases, senators have resigned to accept cabinet 
offices. 

A similar, though unwritten, limitation is that no person hold- 
ing any significant state office shall also hold a federal office. 
This again is different from the principle of the European fed- 
erations: the parliamentary ministers of the German states are 
often also members of the Bundesrath, the German body which 
corresponds to our senate. 

126. Relations -with Congress. 

The right of the president to initiate legislation is one of 
great importance, because his annual and other important 
messages are printed throughout the country and concentrate 
public opinion upon the measures which he advocates. An 
example is, President Cleveland's tariff message of 1887, which 
made the tariff an issue in the presidential election of 1888. 
The veto power gives to the president, upon its face, as much 
influence over legislation as one sixth of the members of each 
house have ; and practically it gives him more than a sixth, 
because the veto attracts public attention. 

The president has many indirect means of affecting legisla- 
tion and legislators, (i) He is frequently a recognized party 
leader. Thomas Jefferson, Andrew Jackson, Grover Cleveland, 
and William McKinley are examples of presidents of this type. 
(2) Almost every president has powerful personal friends in 
both House and Senate, who are ready to defend his sugges- 
tions and to introduce bills and amendments which meet his 
views. (3) The patronage of the president gives him a great 
hold upon both houses ; for, if he refuses to accept the names 
submitted to him by members of Congress, the latter lose repu- 
tation and political power in their own districts. Sometimes 
the patronage has been used to secure desirable measures. 
Thus, in December, 1864, President Lincoln made overtures 
to some of the members of Congress, and secured the necessary 
two-thirds vote for the pending Thirteenth Amendment. 



274 The President. [§ 127 

In general, the president is more powerful in Congress than 
any other individual ; but when a majority in one or both 
houses is opposed to him, his most unselfish measures are likely 
to be resisted for political reasons. President Madison found 
Congress intractable in 1809 ; John Quincy Adams's adminis- 
tration was almost paralyzed by determined opposition ; from 
1 83 1 to 1835 Jackson was engaged in an almost continuous 
struggle with Congress ; and Tyler came to an open breach 
with his Whig associates in Congress. Very frequently the 
party which elects the president loses control of the House in 
the middle of his term. Nevertheless, the president is so inde- 
pendent of Congress that in the long run he is likely to pre- 
vail in any controversy; Johnson was the only president to 
confront a working two-thirds majority in both houses which 
could override the president's vote and make him subject to 
whatever that two-thirds majority held to be constitutional. 
The truth is that the president is a personality and Congress 
is an organism, and popular interest and enthusiasm are much 
more likely to go to the personality. 

127. Dignity of the Presidential Office. 

The American presidency is praiseworthy for its simplicity. 
The president has no high-sounding title : it was indeed 
proposed to give Washington the title " His Highness, the 
President of the United States and Protector of their Liber- 
ties," and to put his head upon the coins ; but the official title 
from that day to this has been simply " Mr. President." The 
president receives ambassadors, but he rarely converses with 
them upon diplomatic questions. He appoints thousands of 
officers, civil and military, and yet never wears a uniform even 
as the head of the army. 

Nevertheless, the position of the president is one of great 
dignity and honor. Few public men have been free from the 
pleasing thought that the presidency might come to them. 
General William T. Sherman declared that he would not accept 
the office if elected, for a man who had commanded a huri- 



§ 127] Dignity. 275 

dred thousand men in the field had no need of the presidency ; 
but Henry Clay, Daniel Webster, Stephen A. Douglas, James 
G. Blaine, Thomas B. Reed, and many other great men have 
gone to their graves in disappointment at missing the great 
reward. The president is the head of the nation : to him 
are addressed invitations from foreign governments to partici- 
pate in international congresses and in national festivities ; 
to him come official visitors from abroad, such as Prince Henry 
of Prussia, and a delegation of French notabilities in 1902; 
wherever he goes he is received with respect and honor, irre- 
spective of party. The dignity adheres to a president after his 
retirement from office: General Grant, for instance, in 1877 
made a journey round the world, and was everywhere received 
with a distinction usually reserved for titled sovereigns. 

Other republics have presidents, notably Switzerland and 
France : the Swiss president, however, is only chairman of an 
executive board ; the French president is only a figurehead, 
having little actual authority. The president of the United 
States is the responsible head and director of three great 
national services : he appoints, instructs, and may recall all our 
foreign representatives ; he appoints, commands, and may 
dismiss all military and naval officers ; he appoints and directly 
or indirectly controls all the civil officers of the government, 
down to the postmen and the clerks in custom-houses. No 
president has power to carry the country far beyond its own 
purposes, either for good or ill ; but every president has power 
swiftly and efficiently to apply a freshly-formed public opinion, 
and he is much less affected by local currents of influence than 
is Congress. For instance, in the long discussion over coinage 
and currency, from 1878 to 1898, the presidents frequently 
vetoed acts of Congress ; and finally the majority proved to be 
on their side. The president is not only the official head of 
the government, and the most distinguished personage ; he is 
on the whole the most powerful single factor in American 
government. 



CHAPTER XVI. 

NATIONAL CIVIL SERVICE. 

128. References. 

Bibliography: Brookings and Ringwalt, Briefs for Debate {1896), 
Nos. 15-17; L. M. Salmon, Appoiitting Power (rev. ed., 1903); U. S. 
Civil Service Commission, Fifteenth Annual Report (1898), 511-517 ; W. 
E. Foster, Literature of Civil Service Reform (1881) ; A. B. Hart, Manual 
(1908), §§ 109, no, 212, 213, 292 ; C. R. Fish, Civil Service and the /'.a- 
^r^«fl^^ (1905), App. D. 

The Cabinet: R. L. Ashley, Am. Federal State (1902), ch. xv. ; J. A. 
Fairlie, National Administration (1905), chs. iv-xvii ; J. H. Finley, Ex- 
ecutive (1908), ch, xiii ; J. F. Jameson, Essays in Constitutional Hist. {1889), 
116-185; B. Harrison, This Cotmtry of Ours (1898), chs. vi, xi-xviii; J. 
Bryce, Am. Commonwealth (ed. 1901), I, ch. ix ; A. L. Lowell, Essays on 
Govermnent (1889), No. i; F. Snow, Defence of Cong. Government (Am. 
Hist. Assoc, Papers, IV, 309-328, 1890) ; F. Snow, Cabinet Government 
(Am. Acad. Pol. Sci., Annals, III, 1-13, 1892) ; J. I. C. Hare, Am. Con- 
stitutional Law (1889), I, lect. x; J. W. Burgess, Political Science (1890), 
II, 262, 263, 311-316. — Sources: Senate Reports, 47 Cong. 2 sess. (1881), 
No. 837 ; Message and Documents (annual reprint of reports of members 
of the Cabinet) ; J. A. Garfield, Cabinet Officers in Congress in Works 
(1883), I, 61-72; S. E. Baldwin, Absolute Power ( Yale Law Journal, VII, 
1-19, 1897). 

The Civil Service: C. R. Fish, Civil Service and Patronage (1905), 
chs. i-viii ; L. M. Salmon, Appoititing Power ; C. R. Fish, in Am. Hist. 
Association, Report, 1899, I, 67-86; H. C. Lodge, /List, and Pol. Essays 
(1892), 114-137 ; R. L. Ashley, Am. Federal State (1902), ch. xv. — 
Sources : Annual reports of the heads of departments ; report of the 
Senate Committee of 1888 on the executive departments {Senate Reports, 
50 Cong., I sess., No. 507) ; Report of the Joint ("Dockery ") Committee 
of 1893 {House Reports, 53 Cong., i sess. Nos. 49, 88 ; J. D. Richardson, 
Messages of the Presidents (1896- 1 899); G. Hunt, Office seeking tinder 
Washington, John Adams, and Jefferson [Am. Historical Review, I, 270- 
283; II, 241-261 ; III, 270-291, 1896-1898) ; U. S. Civil Service Com- 
mission, Annual Reports; U. S. Census Bureau, The Executive Civil 
Service {Bulletin No. 12), 1904. 

276 



§ 129] Heads of Departments. 277 

Civil Service Reform : T. Roosevelt, American Ideals (1897), No. 
7 ; T. Roosevelt, Strenuous Life (1900), 41-112, 125-152; C. R. Fish, 
Civil Service and Patronage (1905), chs. x, xi ; F. J. Goodnow, Adminis- 
trative Law (1905), Book IV, chs. iii, iv ; E. E. Sparks, National Develop- 
ment {A7n. Nation, XXIII, 1907), chs. x, xii; G. E. Howard, Imperialism 
and the Civil Service [Pol. Sci. Quar., XIV, 240-250, 1899) ; E. C. 
Mason, Veto Power (1890), §§ 25-28 ; A. B. Hart, Practical Essays (1893), 
No, 4; J. Bryce, Am. Commonwealth (ed. 1901), II, ch. Ixv; G. W. 
Curtis, Orations and Addresses (3 vols., 1894), II, 477—508; H. C. 
Lodge, Hist, and Pol. Essays {1892), 1 14-137 ; G. McAneny, Civil Service 
(Municipal Affairs, IV, 708-720, 1900) ; D. B. Eaton, Government of 
Municipalities ( 1899), chs. vii, viii. — Sources : Good Govermnent (monthly 
periodical) ; National Civil Service Reform League, Proceedings ; United 
States Civil Service Commission, Annual Report (18S4— ) ; Massachusetts 
Civil Service Commission, Annual Report (1885-); New York Civil Ser- 
vice Commission, A^inual Report (1884-) ; A. B. Hart, Contemporaries 
(1897-1901), HI, § 158; IV, §§ 197, 199, 202. 



129. Heads of Departments. 

The president not only acts by his own vi^ords and deeds ; 
he is also the head of the largest body of persons employed 
under one general direction within the United States. The 
total number of members of the House and Senate, with all 
the ofificials of both houses, is only 1,600; the United States 
judges, clerks, marshals, deputies, and other judicial officers 
are only about 2,250. There are, however, 236,000 federal 
executive ofificials and employees, divided like an army into 
various grades of officers and privates. 

Highest of all are the nine heads of departments, commonly 
called members of the cabmet. The constitution simply au- 
thorizes the president to " require the opinion in writing of 
the principal officers in each of the executive departments," 
and authorizes Congress to vest the appointment of inferior 
officers "in the heads of departments." It was understood 
that there were to be such offices as had been constituted by 
the old Congress in 1780 and 1781 ; but all the details were 
left for later legislation. Accordingly, in the course of a cen- 
tury nine cabinet offices have been created and their duties 
defined. 



278 



National Civil Service. [§ 129 



In the early statutes for organizing these offices, the prece- 
dents of the Confederation were first followed by establishing 
Departments of Foreign Affairs, Treasury, and War. In the 
act of 1789 for creating a judiciary, there was also a clause 
providing an attorney-general ; but not till 1870 was the formal 
Department of Justice organized, of which he is the head. 
The Navy Department was subdivided from the War Depart- 
ment in 1798, at the beginning of a naval war with France. 
There was a postmaster-general under the Confederation, and 
also under the federal government from i 790 ; but it was not 
till Jackson's administration that the president recognized him 
as equal to the secretaries. In 1849 various functions were 
withdrawn from the other departments to create a Depart- 
ment of the Interior. In 1889 the previous Bureau of Agri- 
culture was raised to a department with a secretary. In 
1903 a ninth subdivision, a Department of Commerce, was 
organized by act of Congress. All the heads of departments 
are appointed by the president, subject to confirmation by 
the Senate. For many years the salaries of the officers were 
meagre ; each member of the cabinet now receives ^8,000 
a year. 

Most of the great functions of government are assigned to 
one or the other of these departments. (1) The secretary of 
state is in charge of foreign representatives and negotiations, 
and holds interviews and correspondence with resident min- 
isters from foreign countries. (2) The secretary of the 
treasury has the most laborious and the most responsible 
office : he is in charge of the public accounts, and of the 
collection, safe-keeping, and payment of the public money. 
(3) The secretary of war is, under the president, the head of 
the army and of the various clerical offices connected with 
the army; James Monroe in the War of 18 12, and Edwin M. 
Stanton in the Civil War, acquired great reputation by their 
performance of these duties. (4) The attorney-general is 
the legal adviser of the president and heads of departments, 
and is also the prosecuting officer for the federal government, 



§ 130] The Cabinet. 279 

and represents its interests as counsel. (5) The secretary of 
the navy has charge of the construction of ships and mainte- 
nance of the force, and gives orders to the officers. (6) The 
postmaster-general manages an important public service, and 
has by far the greatest patronage, since he appoints and 
commissions about 90,000 postmasters and postal clerks. 
(7) The secretary of the interior has charge of public lands, 
pensions, Indian affairs, patents, and other important sub- 
jects. (8) The secretary of agriculture supervises a variety of 
special services, such as the Bureau of Animal Industry, the 
Forestry Division, the Weather Bureau, and the experiment 
stations which are scattered through the states. (9) The sec- 
retary of commerce has charge of statistics and of corporation 
accounts. 

A few other functions are given to bureaus or commissions 
which are not subordinate to any of the nine great depart- 
ments. The Government Printing-Ofifice is carried on by a 
public printer appointed directly by the president. In Wash- 
ington and elsewhere the government maintains numerous sci- 
entific bureaus, especially the National Museum, the Bureau of 
Ethnology, and the Smithsonian Institution. Among the in- 
dependent services are three offices which are almost the only 
examples of administration carried on by a national executive 
board : the Fish Commission, the Interstate Commerce Com- 
mission, and the Civil Service Commission. The Interstate 
Commerce Commission, created in 1887, is really an adminis- 
trative court to decide questions of transportation. The Civil 
Service Commission, created in 1883, watches over the se- 
lection of about 120,000 subordinate employees, distributed 
among the various departments. 

130. The Cabinet. 

Inasmuch as the president exercises such large executive 
powers, it is remarkable that he was not surrounded by a 
council which should have some power to check him. In 
the Federal Convention various plans were made for a council 



28o National Civil Service. [§ 130 

of state, or privy council ; but all these provisions were 
dropped, perhaps because the Senate has a constitutional 
check upon treaties and appointments. 

The nine heads of departments by their association in 
the cabinet act as one federal instrumentality and supply the 
place of a constitutional council. The name "cabinet," as 
employed in England and on the continent, means the parlia- 
mentary ministry. The American cabinet is wholly different: — 
(i) The members are appointed by the president and con- 
firmed by the Senate, and are not really responsible to either 
house of Congress. (2) They are appointed singly; and 
if one is compelled by public sentiment to resign, the others 
remain. (3) The cabinet has no official relation to the prep- 
aration or passing of measures in Congress. 

The American cabinet is simply composed of those heads 
of great executive offices whom the president chooses to invite 
to meet him from time to time in council. He may summon 
six and leave out the other three ; or he may, like Jefferson, for 
many months hold no cabinet meetings at all. By tradition 
and practice, however, any man invited to accept a cabinet 
position understands that the president will make him one of 
a body of habitual advisers, and will usually consult him before 
taking any important step with relation to his department. 
Yet the president is not bound to ask or to take the advice 
of the cabinet on any public measure. For instance, in 
September, 1862, President Lincoln called his cabinet to- 
gether and invited them to listen to the draft of his proposed 
proclamation of emancipation, clearly stating that he did not 
ask their approval, since he had made up his mind to issue 
it. It is believed that Franklin Pierce used to poll his cabinet 
and govern himself by the majority vote ; but no other presi- 
dent has ever admitted that the majority, or the whole, of his 
cabinet could control his action. 

In choosing his cabinet, the president looks first of all for 
strong men who fairly represent his party. Personal friendship 
often goes a long way in such selections : for instance, Jackson 



§13°] The Cabinet. 281 

appointed John H. Eaton, a man of little public experience, to 
be secretary of war. The president tries to represent the vari- 
ous geographical sections, and hence it is uncommon to select 
two cabinet members from the same state. He tries to recog- 
nize different wings of his party : thus, Lincoln appointed four 
old Democrats and three old Whigs to his cabinet in 1861 j he 
said that there was a perfect balance, because he was the fourth 
old Whig. 

In the act creating the secretary of state in 1789, by the 
tie vote of Vice-President Adams, a clause was introduced 
recognizing the right of the president to remove heads of 
departments without consulting the Senate. Except in two in- 
stances, the possession of the power has prevented the neces- 
sity for using it : John Adams removed Timothy Pickering, 
secretary of state, in 1800; and Jackson removed William J. 
Duane, secretary of the treasury, in 1833. Johnson suspended 
Edwin M, Stanton, and tried to remove him, in 1867; and 
William W, Belknap resigned in 1875 to avoid impeachment. 
In many cases, however, members of the cabinet have resigned 
because they could no longer agree with the president : thus, 
Lewis Cass withdrew in i860 because he thought President 
Buchanan was not sufficiently active against secession. 

If a president is reelected, he commonly carries over the 
whole or a part of his previous cabinet, and sometimes a man 
has been retained even beyond eight years : William Wirt was 
attorney-general continuously from 181 7 to 1829, and Albert 
Gallatin was secretary of the treasury for thirteen years, from 
1801 to 1814. Nevertheless, cabinet changes are frequent: 
the only president who lived through his term without a change 
in his cabinet was Franklin Pierce. Frequently, in case of a 
vacancy, a man is moved from one place to another : thus, 
Richard Olney was made attorney-general in 1893 and sec- 
retary of state in 1895. The most remarkable case of resig- 
nation was that of five of the six members of the cabinet in 
September, 1841, as a protest against President John Tyler. 

Inasmuch as the president selects his own secretaries and 



282 National Civil Service. [§ 131 

has the power to dismiss them for reasons that seem good to 
him, he can secure harmony and cooperation. When, in 1833, 
Secretary Duane refused to remove the government deposits on 
the president's direction, Jackson forthwith removed him and 
appointed Taney, who took the required step. When, in 1886, 
it was found that Secretary Manning of the treasury was giving 
orders to capture Canadian sealing vessels on the high seas, 
and that Secretary of State Bayard was protesting against the 
capture of American fishermen, the president interposed and 
decided upon a single policy. 

The president is dependent upon the secretaries for advice, 
for intimation as to the public feeling of the country, and for 
the actual performance of their duties in cheerful cooperation 
with himself. The cabinet is a kind of executive exchange, 
in which the members learn to know what is going on in the 
government ; and the president's attitude is constantly affected 
by the opinion of his advisers, although he is under no consti- 
tutional obligation to take it. A new president, whether he 
comes in by election or by succession from the vice-presidency, 
is justified in changing his cabinet, and invariably does make 
changes sooner or later. 

131. Presidential Removals. 

The power of the president to remove at his discretion 
applies to all officers whom he appoints, except to United 
States judges, and to military and naval officers, who ordina- 
rily have a right to a court martial. Constitutionally, the presi- 
dent appoints judges, foreign ministers and consuls, and all 
others except inferior officers ; Congress decides where the 
line is drawn between higher and inferior. In 1896 there 
were 4,815 presidential executive officers confirmable by the 
Senate, all of whom were removable by the president at his 
discretion. 

The debate on the power of removal in 1789 turned on the 
question whether the removal of officers is an incident of their 
appointment (in which case removal must be approved by the 



§ 130 Presidential Removals. 283 

Senate), or is a part of the president's general duty faithfully 
to execute the laws of the United States. The experience of 
the states, and especially of the cities, shows that it is contrary 
to the public interest to allow a state Senate or a board of 
aldermen to block removal, and that Congress decided wisely 
in accepting the second doctrine. 

This important decision once made was adhered to for 
nearly eighty years. In 1867 the two-thirds majority of Con- 
gress passed over the president's veto a tenure-of-ofifice bill, 
under which the consent of the Senate was practically required 
for the removal of cabinet ministers and other presidential 
appointees. President Johnson attempted to test the consti- 
tutionality of this statute by suspending Secretary Stanton. 
In 1869, when President Grant came in, the most important 
part of the act was repealed, and in 1885 the rest of it; so 
that the country has returned to the earher practice. 

At the beginning of the federal government it was not usual 
to define the terras of officials, except that marshals and district- 
attorneys were appointed for four years only. In 1820 Sec- 
retary Crawford of the treasury secured the passage of an act 
under which the terms of certain officials who handled public 
money were to be four years ; and this principle has since been 
extended to most of the important federal officials, including 
the chiefs of many bureaus, the governors and judges of terri- 
tories, Indian agents, collectors and surveyors of the customs, 
pension agents, and especially postmasters having salaries of 
^1,000 or upwards. 

The result is that the commissions of nearly all the impor- 
tant officers of government expire at some time within the four 
years' term of any president, without raising the issue of re- 
moval. Although the cabinet officers and some other im- 
portant officials are appointed without limit of term, they are 
precisely the officers who are necessarily changed when a new 
president comes in : hence, four years is considered the nor- 
mal term for federal office ; one reappointment is unusual, a 
second reappointment very rare. In this respect our system 



284 



National Civil Service. 



[§ 131 



is entirely different from that of most other civiUzed countries, 
in which such appointments are commonly made for good 
behavior. 

Yet the power to remove is absolutely necessary for efficient 
government. The national government is responsible for de- 
fence, for international relations, postal intercourse, and many 
other functions in which unity and persistency of policy are 
necessary. Unfortunately, this salutary power, used during 
forty years for the benefit of good administration, soon after 
1829 became one means of demoralizing the public service 
and discouraging capable defence. The following table (pre- 
pared by Professor C. R. Fish) well illustrates this subject. 
The figures are for civil officers only, military and naval re- 
movals having been left out of account. 





(M 

'a 
> 



1 
P. 


(2) _ 

^ C " 

u 3 re 
rt^ in 

<u.2 


(3) 

'0 

a 


i 

'5 


(4) 

c 



1> . 

£-3 

B 0- 

•§ ^ 
o- S 


(5) 

s 

V 

lt 

£ a 
.5™ 
3 1- 
0, « 


(6) 

so 
c 

s 

■T3 

■□ 

c 

.2 m 
m nj 
6 V 

e ^ 


(7) 

c 

a 

- s 


(8) 

V 

> 
a 

S 

O.'ra 

31 

C 


(9) 

B 

c_5 

3 <u 

Oh p. 


Washingto 
John Adan 
Jefferson 
Madison 
Monroe 
J. Q. Adan 
Jackson 
Van Buren 
Harrison a 
Polk . . 
Taylor . 
Fillmore 
Pierce . 
Buchanan 
Lincoln . 
Johnson 


n 
is 

is 
nd 


Tyler 




13 

14 
48 

4 

17 

5 

164 

26 

375 
225 

44 

45 

676 

197 

862 

455 


4 

5 

II 

20 

ID 

2 

26 

17 
15 

3 
17 

5 

75 

14 

25 

200 


2 
8 
2 

4 
58 
30 
60 

108 
43 
13 
38 

203 
46 

142 


2 

I 

I 

9 
6 

5 
6 
8 

12 

I 

IT 

25 


5 
I 

3 

I 

10 


42 

2 

4 
51 

7 


8 

3 

2 
2 

3 
I 


4c 




17 

21 

109 

27 

27 

12 

252 

80 

458 

342 

540 

88 

823 

458 

1457 

903 


433 
824 

610 
924 

929 

1520 
2669 


Total . . 




3169 


445 


762 


89 


20 


1089 


40 


5614 





§ 132] Appointments and Removals. 285 

It will be seen that the largest number of removals in pro- 
portion to presidential offices was during Lincoln's administra- 
tion, a time of confusion and national danger; but almost 
every president, by removal or by expiration of commission, 
changes at least seven tenths of the presidential officers, even 
though the preceding president was of the same party. Such 
a state of things cannot be reached by act of Congress, for 
the president is not subject to legislative control in the exer- 
cise of either his appointing or his removing power. Con- 
gress cannot in any way designate the person who is to fill an 
office : in 1884, when a bill was passed authorizing the presi- 
dent to appoint Fitz-John Porter colonel in the regular army, 
the president vetoed it on the ground that Congress was not 
competent to confer such authority. In 1864, however, Con- 
gress established a class of consular clerks, with the provision 
that, if the president removed them, he must state the reasons 
for removal ; and no president apparently has protested. On 
the other hand, presidents have repeatedly refused to submit 
papers to the Senate bearing upon the removal of officers. 

Many other countries have half-way disciplinary measures 
for delinquent officials, such as loss of pay for a few weeks or 
months, or transfer to an unattractive part of the country. 
Such partial measures are almost unknown in the United States 
service : most of our officials do their duty, obey orders, treat 
the public civilly, and feel a pride in their performance of 
duty ; where they are remiss, the only way of securing good 
service is to use the power of removal in obstinate cases. 

132. Minor Appointments and Removals. 

Under the constitution, Congress may by law vest the ap- 
pointment of such inferior officers as it thinks proper " in the 
president alone, in the courts of law, or in the heads of de- 
partments." (i) Thirty-six officers, including the librarian of 
Congress and the public printer, are appointed and removed 
by the president alone. (2) The courts are authorized to 
appoint their own clerks and reporters, and some clerical 



286 National Civil Service. [§ 132 

officers. (3) The remainder of the vast number of minor 
officials of every grade are nominally appointed by the heads 
of departments. In practice, a great variety of influences 
work upon those who have the power of appointment. The 
president frequently puts pressure upon his secretaries to 
designate persons in whom he has confidence. The influ- 
ence of senators and representatives over minor appointments 
within their districts is even stronger than over presidential 
appointments. For instance, the postmaster-general appoints 
and commissions all the 72,000 fourth-class postmasters hav- 
ing salaries of less than ^1,000 each: one of the assistant 
postmaster-generals is detailed to make the appointments, 
subject of course to the overruling of the postmaster-general ; 
and most of the places are filled on recommendation of mem- 
bers of Congress or other political leaders. 

The federal civil service is carefully organized in subdi- 
visions. Nearly every department has several assistants to 
the secretary, — there are three assistant secretaries of state, 
and four assistant postmasters-general ; every department has 
from five to twenty bureaus, at the head of each of which is a 
chief clerk or other executive officer. Most of these officers, 
except where the appointments are subject to confirmation, 
are now included in the classified competitive service, and 
protected by an executive rule against arbitrary removal. 

A great number of the clerks are nominated by the heads 
of their offices : for instance, the collectors of customs and 
of internal revenue appoint deputies, the commissioners of 
internal revenue appoint agents, the superintendent of the 
mint appoints all the officers employed in that office, regis- 
trars of the land office appoint clerks, and so on. All these 
appointments are, however, subject to revision by the heads 
of the departments. 

The general principle is that the power which appoints may 
also remove ; hence the heads of departments have nearly 
unlimited power over the minor officials, and for many years 
the result was a changeful public service. Down to 1829 it 



§ 132] Appointments and Removals. 287 

was tacitly understood that subordinate officers of all kinds 
held during good behavior ; but the political removal of the 
heads of offices in Jefferson's administration was undoubtedly 
followed by removal of minor employees. It was not till the 
introduction of the so-called " spoils system " into the national 
government in Jackson's administration that the principle was 
adopted of systematically displacing federal employees of all 
kinds because they did not agree in politics with the presi- 
dent for the time being. Jackson has been much maligned : 
there was nothing like a clean sweep of the presidential offices 
during his administration ; but the political removals resulted, 
no doubt, in the disorganization of many public offices and 
in the ejection of many faithful subordinates. From Jackson's 
administration to Arthur's, the whole civil service has been 
demoralized every four years by wholesale political removals ; 
and even more recently a postmaster-general boasted that he 
was cutting off the heads of a hundred fourth-class postmasters 
every day. 

The underlying reasons for political removals are two. 
(i) The president and his cabinet desire to oblige their per- 
sonal and pohtical friends by giving them offices ; and the only 
way to find plenty of places is to remove people without regard 
to their abilities or services. An interesting example is the 
appointment, by President Pierce in 1853, of his classmate 
Nathaniel Hawthorne to be consul at the lucrative post of 
Liverpool. (2) The holders of many federal offices have been 
expected to do party work, — to organize the primaries, to 
get out the vote, to make up slates for nominations ; and that 
work can be performed only by political friends. An example 
is Buchanan's appointment of Joseph B. Baker to be collector 
of the port of Philadelphia. 

If the object of the federal government is to give first one 
political party and then the other an opportunity to dissemi- 
nate its principles, to instruct voters, and to organize forces 
for the next election, then the system of political proscription 
is reasonable. If the office of government is to carry on its 



288 National Civil Service. [§ 133 

functions as effectively and economically as possible, then it 
is both wasteful and wrong to dismiss experienced employees 
simply to make room for inexperienced persons. Further- 
more, if appointments and removals depend on political favor, 
the usual incitement to good service is taken away : the poor- 
est official may be kept in if he does good party service ; the 
most faithful official may be dismissed without a day's notice. 
Another result of the spoils system is an ignoble personal 
scramble both for appointments and for retention in office. 
In scores of instances the head of a department, on coming 
into office, has dismissed an incompetent or a disobedient clerk 
only to find within a few hours that the offender had behind 
Aim as " influence " a powerful senator or representative or 
local party leader, who insisted on his being restored. 

Under such conditions of uncertainty, it is remarkable that 
the federal service has been so honest and efficient. The 
worst case of defalcation in the history of the government was 
that of Samuel Swart wout, collector of New York from 1829 
to 1838, whose accounts proved to be short by more than 
$1,000,000. Since that time the government bookkeeping 
has improved, better checks have been devised, and during 
the last thirty-five years the loss to the government from the 
dishonesty of its servants has been very small. On the other 
hand, the loss to the public from rapid changes, especially 
among clerical offices, is difficult to estimate : it means a 
poorer service than it is reasonable to expect, for more money 
than ought to be paid. 

133. Reform of the Civil Service. 

The evils of appointment to minor office for political reasons, 
and of removals for the same reasons, very early became 
evident. Even in Jackson's administration there were inves- 
tigations and reports of committees on these abuses ; and 
President William H. Harrison, when he came into office in 
1 84 1, seemed disposed to forbid removals for political reasons. 
But the attention of the country was speedily diverted by the 



§ 133] Civil Service Reform. 289 

terrible struggle over slavery, and then by the Civil War ; and 
previous to 1883 Congress passed only four statutes on this 
subject : — 

(i) The Four- Year-Term Act of April 14, 1820 (applying 
to collectors of public money), was really intended to enable 
Secretary Crawford to build up a political machine. 

(2) An act of March 22, 1853, provided for the classifica- 
tion of most of the clerks in Washington : no clerk was to be 
appointed except on an examination conducted by the head 
of the office. Inasmuch as the chief upon whom the pressure 
to appoint was put was also the examiner, it is not to be won- 
dered that the act was a farce. Some of the questions asked 
of candidates under those examinations were : " Where would 
you go to draw your salary?" "How many are four times 
four?" "What have you had for breakfast?" " Who rec- 
ommended you for your appointment? " 

(3) An act of 1864 provided for the appointment of thir- 
teen consular clerks, by examination in the State Department. 

(4) By act of March 3, 187 1, a great reform was initiated : 
the president was authorized to prescribe regulations for the 
admission of persons into the civil service, and to ascertain 
the fitness of each candidate. The responsibility of organiz- 
ing a new method of appointment was thus thrown upon 
President Grant, who was heartily interested in the reform. 
He appointed a good commission, with George William Curtis 
at the head; but in 1873 Congress refused to make further 
appropriations, and for the time the reform failed. 

General Grant's commission drew up rules which included 
the great principle of competitive, instead of pass, examina- 
tions ; and a few local collectors and other officials kept up 
such examinations in their districts. During the next ten 
years, the federal office-holders were repeatedly assessed a 
percentage of their salary for the campaign fund of the party 
in power, thus emphasizing the fact that federal officials, paid 
out of the federal treasury, were expected to be party agents. 
In 1 88 1 President Garfield was assassinated by a disappointed 

19 



290 National Civil Service. [§ 134 

ofifice-seeker, and in 1883 was secured the first effective civil- 
service law. Under it, during the past twenty years, nearly 
all the minor officials of the government except fourth-class 
postmasters have been placed under a system of appointments 
which ensures fitness, and which practically guarantees them 
against removal for political reasons. 

134. Civil Service Commission. 

The act of January i6, 1883, is the basis of the present 
federal civil service. It does not include elaborate details 
either on appointments or on removals, but authorizes the 
president to promulgate rules at his discretion. It lays down 
several definite principles, which, to use the convenient and 
applicable term of Mr. Roosevelt, create a " merit system " as 
opposed to the old "■ spoils system." 

(i) The act provides for the classification of clerks and 
other officers into four groups, according to their compensa- 
tion ; and hence all the persons subject to competitive exami- 
nation are said to be in the "classified service." (2) It 
creates a commission of three (not more than two to be of 
the same political party), to be appointed by the president and 
Senate, and removable by the president. (3) Examinations 
are to be open and competitive, and practical in their character, 
a period of probation to precede final appointment. (4) Ap- 
pointments are to be apportioned among the several states 
and territories on the basis of population, — a clause difficult 
to apply. (5) Political assessments by any federal officials, 
or in any premises occupied by federal offices, are forbidden ; 
and no person can be removed for refusing to contribute to a 
political fund. (6) No senator or member of the House is 
allowed to make any recommendation for the offices included 
in this system. (7) Persons honorably discharged from the 
military or naval service by reason of disability resulting from 
wounds or sickness incurred in the line of duty are to have a 
preference, a provision which practically submits them to a 
pass examination only. (8) The law is not to apply to any 
person nominated for confirmation by the Senate. 



§ 134] Civil Service Commission. 291 

President Arthur at once proceeded in good faith to put this 
law into execution. He appointed a commission, upon which 
six years later came Theodore Roosevelt of New York, the 
most efficient of all those who have ever been connected with 
the commission. President Cleveland, President Harrison, 
and President Roosevelt each in succession made large exten- 
sions of the system. Beginning with some of the clerks in 
Washington and in large post-offices and custom-houses, the 
system has gradually been extended to cover almost all the 
clerks in Washington, in the smaller post-offices, custom-houses, 
and revenue offices throughout the country, in the railway- 
mail service, the letter-carrier service, and the Indian service. 
The present exceptions to the classified service (including 
certain officers within that service which it has been found 
impracticable to classify as competitive), number about 
80,000 persons, as follows: (i) the presidential offices; 
(2) certain confidential or responsible offices, -r— as private 
secretary, cashier, and so on, — for which the head of the 
office has a right to choose his own man; (3) the fourth- 
class postmasters. 

The Civil Service Commission has instituted a system of 
promotions from the lower to the higher grades, and usually a 
man enters the service through the lower grade and works up ; 
hence government employees are anxious to make good records 
for efficiency in their offices. This system does not always 
secure the rise of the best men, and has been freely criticized. 
The Civil Service Act says nothing about removals, except 
that no one shall be removed for refusing to subscribe to a 
political fund, and protection is established through an execu- 
tive rule only ; nevertheless, in practice the merit system is 
almost a complete bar against political removals. The head 
of an office does not like to part with efficient subordinates, 
for he wants to have his work done. Even under the spoils 
system a large proportion of the removals were made against 
the real wish and interest of the chiefs, in order to create 
vacancies to be filled by political appointees, presumably less 



292 National Civil Service, [§ 134 

helpful ; and old and superannuated public servants were likely 
to suffer. Under the classified service the man with a political 
backing cannot get an appointment unless he stands high on 
the list; hence removals are infrequent, and are usually in- 
tended for the good of the service. Indeed, one of the minor 
defects of the merit system is that, since there is no retiring 
allowance for civil offices, kind-hearted heads of departments 
hesitate to remove faithful employees who have grown old and 
can no longer perform their duties. 

The Civil Service Commission holds its examinations 
throughout the country. Papers, copies of which are always 
kept for later reference, are made up by ofificial examiners, 
with special attention to the particular service to which appoint- 
ments are to be made : a copyist, for instance, must write 
neatly and spell correctly ; a letter-carrier must have a good 
memory and a good physique ; a book-keeper must be accu- 
rate in figures. A favorite falsehood about the examinations 
is that people are appointed because of their knowledge of 
totally unnecessary details, such as the distance from the earth 
to the moon. Such questions are not to be found in the 
papers of the National Commission, except in examinations for 
special positions ; a government astronomer, for instance, 
might advantageously know the distance from the earth to the 
moon. 

The practical difficulties in the way of the proper enforce- 
ment of the Civil Service Act are many : — 

( 1 ) An undisguised hostility is felt by many members of 
Congress, who feel deprived of a source of political strength 
because they can no longer make effective recommendations 
for office ; though many members feel it a great relief not to 
be called upon to make decisions between rival candidates. 

(2) There is a terrible pressure for the comparatively few 
offices left out of the classified service. For instance, when 
a census bureau was created in 1899, Congress so arranged 
it that nearly all the clerkships were filled on the personal 
recommendation of members. 



§ 134] Civil Service Commission, 293 

(3) A few heads of offices seek to evade or to defy the 
statute. When a vacancy occurs, the head appHes to the Civil 
Service Commission, which certifies the three highest names 
on the Ust of persons examined for that kind of position ; if 
the chief does not know any of them, he commonly picks out 
the highest on the list. An ingenious official in Chicago asked 
for a certification, appointed a man, fortliwith removed him, 
asked for another certification, appointed the next man and 
removed him, and kept it up till he reached a man well down 
the list whom he had set out to favor. Other heads of offices 
sometimes appoint men without the least reference to the 
Civil Service Commission ; in such cases the Commission is 
apt to lay the circumstances before^the disbursing officers of the 
treasury, who frequently refuse to honor warrants for salaries 
for such persons, on the ground that they are not legally in the 
service. In spite of the absolute prohibition of the statute, 
political assessments are sometimes made even by heads of 
offices and by senators and representatives. 

(4) The complexity of the service causes trouble. The 
number and variety of offices is such that it is difficult to meet 
all cases ; amendments to rules are frequently submitted to the 
president and by him put in force, and thus the rules become 
complicated. The question of confidential offices also makes 
trouble and confusion : some heads of offices strive to include 
persons whose service is only clerical ; others detail a man 
appointed as a laborer or a messenger (and hence outside the 
civil service rules) to perform duties which ought to come 
under the classified service. The appointment of laborers in 
the government establishments has been greatly improved by 
the adoption of registration rules. This system was introduced 
in the navy by Secretary Tracy, adopted by the Civil Service 
Commission, and applied to the departments in Washington 
and also to arsenals and other army services. 

The 72,000 fourth-class postmasters are for obvious reasons 
still left outside the classified service : their duties are simple, 
and easily learned by any intelligent person ; nearly all such 



294 National Civil Service. [§ 134 

postmasters have other business ; and, since the government 
cannot afford to hire separate buildings, and the fourth-class 
post-offices are therefore nearly all in private houses or places 
of business, a competitive examination would not result in the 
selection of the person who owned the most convenient place 
for a post-office. In a few cases members of Congress have 
permitted an unofficial choice by voters of their party, and have 
recommended the appointment of the man who had the most 
suffrages; but nearly all the fourth-class postmasters are 
selected by personal favor or for political reasons. 

The ideal method of appointing public officers is that used 
by railroads or express companies : to select young men who 
seem promising, give them opportunity, and promote the best 
of them till they reach positions of responsibility. If the 
president and heads of departments were left to themselves, 
this is the kind of national service they would work out ; but 
the experience of the half century from 1830 to 1880 shows 
that no such system is possible under federal government. 
Neither the president nor the heads of departments are allowed 
free hand, or could under the conditions be allowed it ; for 
they must appoint thousands of people whom they cannot 
personally know. Some impartial method must be found for 
designating officers, at least for first appointments. The com- 
petitive examination almost entirely takes out the element of 
political influence, and insures at least that the appointee shall 
be intelligent : it makes impossible such choices as sometimes 
happened under the old regime, where men who actually could 
neither read nor write were, sometimes appointed as letter- 
carriers. A candidate once appointed, the merit system further 
allows discretion in promotions, and leaves the head of the 
office free to remove for cause. Though not a perfect system, 
it has given an efficient administrative body, with a strong 
feeling of responsibility and esprit de corps. 



CHAPTER XVII. 
THE FEDERAL JUDICIARY. 
135. References. 

Bibliography: J. J. Lalor, Cydopcedia (1881-1884), II, 653; A. B. 
Hart, ^a««a/ (1908), §§ 113, 114, 216, 217; E. McClain, Constittitional 
Law (1905), §§ 137, 141, 144, 155, 159, 167; Channing and Hart, Guide 
(1896), §§ 157, 175, 202. 

Judiciary: S. E. Baldwin, Am. Judiciary (1905), chs. i-vii, ix ; H. L. 
Carson, Supreme Court (1892) ; J. Bryce, Am. Comtnonwealth (ed. 1901), 

I, chs. xxii-xxiv; J. R. Tucker, Constitution (1899), I, ch. xiii; W. W. 
Willoughby, Supreme Court (1890) ; F. J. Goodnow, Administrative 
Law (1905), 378-440; J. A. Woodburn, Am. Republic (1904), ch. vi ; 
E. McClain, Constitutional Law {1905), § 138; H. Miinsterberg, Ameri- 
cans (1905), ch. v; J. A. Smith, Spirit of Am. Government (1907), ch. v; 
R. L. Ashley, Am. Federal State (1902), ch. xvi ; B. A. Hinsdale, Am. 
Government (rev. ed., 1895), chs. xxxiv-xxxix; G. S. Boutwell, Constitu- 
tion (1895), '^hs. XV, xxxvi-xlii ; J. W. Burgess, Political Science (1890), 

II, 320-337 ; T. M. Cooley and others, Constitutio7ial History (1889) ; 
J. S. Landon, Constitutional History (rev. ed., 1900), chs. xiii-xvi; W. 
Wilson, The State (rev. ed., 1900), §§ 1306-1322 ; T. M, Cooley, Consti- 
ttctiojtal Law (1898), ch. vi; R. L. Ashley, Am. Federal State (1902), ch. 
xvi; D. J. Brewer, Supreme Court {Scribner' s Magazine, XXXIII, 273-284, 
1903) ; J. B. Thayer, John Marshall (1901), chs. iii, v. 

Declaring Acts Void : Bibliography in A. B. Hart, Manual (1908), 
§§ 8, 104, 161 ; J. B. Thayer, Origin and Scope of the Am. Doctrine of 
Constitutional Law (1893); J. B. Thayer, yb^« Marshall (1901), 61-78, 
95-101, 104-110; J. B. Thayer, Cases on Constitutional Law (1895), I, 9- 
47, 146-154; E. McClain, Constitutional Law, §§ 142-171; B. Coxe 
Judicial Power and Unconstitutional Legislation (1893) ; W. H. Meigs, 
Relation of the Judiciary to the Constitution {Am. Law Review, XIX, 175- 
203, 1885); T. M. Cooley and others, Constitutional History (1889), 9-14, 
37-43,76-80, 179-188, 221-223, 226-233; W. W. Willoughby, Supreme 
Court (1890), chs. V, vi ; H. L. Carson, Supreme Court (1892), I, 203-206; 
II, 366-378; J. C. B. Davis, in 131 U. S. Reports (1888), App. ccxxxv- 
cclvii ; T. M. Good, Athetiian Parallel ( Yale Review, II, 64-73, ^^93) > 
R. C. McMurtrie, Jurisdiction to Declare Acts Void {Am. Law Registery 
n. s. XXXII, 1093-1108, 1893) ; J. Bryce, Am. Commonwealth (ed. igoi)* 

295 



296 Federal Courts. [§ 136 

I, ch. xxxiii ; F. P. Powers, Recent Centralizing Tendencies (Pol. Sci. Quar., 
V, 389-410, 1890) ; K. C. Babcock, Rise of Am. Nationality {Am. Nation, 
XIII, 1906), ch. xviii; A. B. Hart, Salmon P. Chase (1899), chs. xiii, xv ; 
C. B. Elliott, Legislatures and the Courts (Pol. Sci. Quar., V, 224-258, 
1890). 

136. History of the Federal Judiciary. 

The American judicial system is founded directly on the 
English courts, established by the crown to exercise the royal 
judicial power. The colonial judges were also usually ap- 
pointed by the crown, or by the royal representative, the 
governor ; but from the decisions of the colonial courts there 
was an appeal to the " king in council," that is, to a judicial 
body in England. Neither English nor colonial courts had 
authority to hold void an act of Parliament or of the colonial 
assembly : they took the law as it was made for them by the 
legislatures. 

The new states during and after the Revolution created 
courts much on the colonial model ; and the Congress of 
the Confederation created three kinds of national courts, all of 
which were subject to the authority of Congress, (i) Special 
commissioners were appointed to settle disputes between states 
which could not be impartially tried by the courts of either 
state. One of these commissions decided in 1782 that the 
Wyoming Valley belonged to Pennsylvania and not to Connect- 
icut. (2) The "Prize Committee " of Congress was created 
to decide questions of naval captures. (3) To the so-called 
" Old Court of Appeals in Prize Cases," with the consent of 
some of the states, appeals were brought from the state courts. 
It eventually decided over sixty cases. 

The establishment of the judiciary in the federal constitution 
is one of the most striking features of that great work. For 
the first time in the history of the world the three depart- 
ments of government were thoroughly and cobrdinately organ- 
ized ; for the first time in the experience of federal government 
a system of courts was provided, not only for federal cases, but 
with the right to hear appeals from state courts ; for the first 



§ 136] History. 297 

time courts were authorized to disallow state laws, and eventu- 
ally to assert a similar power over national legislation. 

Although the jurisdiction of the federal courts was carefully 
defined by the Constitution, their organization was left to the 
discretion of Congress; the only insistence was that there 
should be one supreme court, and that the judges should hold 
office during good behavior. In 1789 Congress proceeded to 
organize both supreme and inferior courts, and to arrange them 
in a progressive system on the model of the then existing state 
courts ; and President Washington made the first set of judi- 
cial appointments. 

The United States Supreme Court has such close and com- 
plete power of reviewing cases decided in the inferior courts 
that it has included most of the famous American decisions 
and many renowned judges, and the chief jastice has been a 
great figure in the development of American law. The first 
three chief justices — Jay, Rutledge, and Ellsworth — had brief 
service, few cases, and little opportunity for legal distinction ; 
then followed in succession two men whose service covered 
sixty-four consecutive years, and who set a strong individual 
stamp upon American jurisprudence. 

John Marshall (1801-1835) was by far the most remarkable 
personaUty in the whole history of the national judiciary. An 
ardent federal politician, diplomat, and member of the cabinet 
before his appointment, he became, next after Madison, the 
man who did most to put into definite form the principles of 
the federal constitution. During his thirty-four years of ser- 
vice, Marshall himself drew a large number of opinions, espe- 
cially in constitutional cases. By his extraordinary power of 
lucid statement of legal principles, and by an equal power of 
discerning what the American people desired their government 
to express, he made himself the most famous of all American 
jurists ; and he had the triumph of bringing to his point of 
view a succession of associate justices, who were introduced 
into the Supreme Court in the hope of curbing him. 

Under Marshall's successor, Taney (i 835-1 864), the per- 



298 Federal Courts. [§ 137 

sonnel and the standpoint of the court were completely 
changed. Taney had a strong legal mind, but accepted the 
Jeffersonian principle that the federal government ought to 
govern as little as possible ; and under his guidance the United 
States courts somewhat receded in power. The Civil War was 
so abnormal that the courts were bewildered, and made almost 
no decisions in restriction of the mighty national powers that 
suddenly sprang up. In 1864 Salmon P. Chase, recently 
secretary of the treasury, was made chief justice in a court 
for a third time rejuvenated by new appointments ; and under 
him began a serieS of constitutional decisions, chiefly arising 
out of the Civil War and Reconstruction, which showed a 
renewed sense of power. Chase was succeeded by Waite 
(1874— 1888), a man of much less individuality. Since 1888 
Fuller has been chief justice. 



137. Federal Judges. 

The number of United States judges in 1901 was as follows : 
Supreme Court justices, 9 ; circuit judges, 27 ; district judges, 
70 ; judges of the United States Court of Claims, 5 ; judges of 
the United States Court of Private Land Claims, 5. The 
influence of strong personality has been shown on the national 
bench not only by chief justices, but by such associate jus- 
tices as James Wilson, Story, Woodbury, McLean, Miller, and 
Gray, and by many circuit and district judges. Courts are 
not free from human interests and passions : by the great 
dignity of their office, by the conservative tradition of the 
legal profession, by the effective though indirect way in which 
they decide public questions, judges are less subject to gusts 
of popular feeling than are other officials ; but this advantage 
is gained only by extreme care in selecting them. 

Every judge of the United States must be appointed by the 
president, subject to the confirmation of the Senate. This 
method was not common in 1787, for most of the state judges 
were chosen by the legislatures. Once inserted in the consti- 



§ 137] Judges. ±gg 

tution, it has never been altered, although most states have 
adopted the system of elected judges. The constitutional 
term is for good behavior; and the emolument of a judge 
cannot be diminished during his continuance in office. As 
young men are frequently appointed, the result is often a long 
term of service : six of the Supreme Court justices — Marshall, 
Washington, Johnson, Story, Wayne, and Field — '■ each sat on 
the bench more than thirty years ; William Cranch was a cir- 
cuit judge for fifty years, and James S. Morsell for forty-seven 
years. 

Although there is no constitutional requirement to that effect, 
none but lawyers are ever appointed to the United States 
bench ; yet it is remarkable that not one of the chief justices 
of the Supreme Court of the United States since 1801 had 
ever been a judge before his great appointment, and that 
three — Marshall, Taney, and Chase — were or had been 
cabinet officers, as were several of the associate justices. 
Occasionally, though rarely, supreme judges are appointed 
out of the circuit and district courts ; Justices Brown and 
Brewer were both promoted in this manner. A good state 
judge is sometimes transferred, as was Justice Grier of Penn- 
sylvania in 1844, and Justice Holmes of Massachusetts in 
1902. Some senators have been made judges, as Justice 
Woodbury of New Hampshire in 1845, and Justice White of 
Louisiana in 1894. President Grant in 1871 was very unjustly 
accused of making appointments to the Supreme Court with a 
view to securing a decision favorable to the legal tenders. 

In character and efficiency the United States judges are re- 
nowned, though the salaries have been very slowly raised, and 
for men of such importance are still unreasonably small. Jus- 
tices of the Supreme Court are paid ^12,500 a year; circuit 
judges, ^7,000; district judges, $6,000. By statute, judges 
are prohibited from acting as counsel or attorneys, and from 
engaging in the practice of the law. This does not interfere 
with their acting as trustees of property, but absolutely prevents 
their earning fees as lawyers. 



300 Federal Courts. [§ 137 

There are five ways in which judges may leave the bench : — 
(i) By death. Since 1801 every chief justice has died in 

office except the present incumbent, and many of the lower 

judges have held throughout their lives, 

(2) By resignation and withdrawal from the bench. This 
was not uncommon in the early days of the federal republic, 
but during the last fifty years has been rare. Justice Curtis 
resigned in 1857 because he thought he had been ill-treated by 
Chief Justice Taney. It is rare for a judge to seek other 
office; yet Circuit Judge Gresham resigned in 1893 to be- 
come secretary of state, and Justice David Davis resigned 
in 1877 to become a senator. 

(3) By resignation on a retiring allowance. Since April 10, 
1869, by act of Congress, any judge who has held his commis- 
sion ten years and has attained the age of seventy years may 
resign, and may continue to draw full salary during the re- 
mainder of his life. Judges frequently remain on the bench 
after seventy, preferring to be active ; and occasionally men 
who have not served ten years, or have not reached their 
seventieth year, are retired by special act of Congress, 

(4) By discontinuing the office. The only instance of this 
method was in 1802, when Congress, under the leadership of 
Jefferson, repealed an act passed by the Federalists a year 
previous, creating circuit judges ; the judges who had been 
appointed a few months before thereby lost their offices, 
although they insisted that the act was a diminution of their 
salary, contrary to the constitution. This method cannot be 
applied to the Supreme Court, as that body was created by 
the constitution. 

(5) By impeachment. In the whole history of the United 
States there have been but two removals by this constitutional 
method, — Judge Pickering in 1803 for violence on the 
bench, and Judge Humphreys in 1862 for adhering to the 
Confederacy, 

The dignity of the office is such that the ablest men accept 
appointments to the United States bench. The salary is un- 



§138] Supreme Court. 301 

failing, and the retiring allowance insures a support during life. 
Out of the 400 or more persons who have held United States 
judgeships, not more than two or three have ever been accused 
of corrupt practices, and few of other unjudicial behavior. 
Justice Samuel Chase of the Supreme Court was impeached 
in 1803—05, but the charges against him were harshness and 
political rancor rather than judicial unfairness ; and no con- 
viction could be obtained. Throughout the United States, 
the judges stand high for probity and for impartial service to 
the republic. 

138. Federal Courts. 

The regular federal courts are divided into four grades. 
At the apex of the whole system stands the Supreme Court of 
the United States, which has elicited the warmest praise from 
nearly all critics of American government, both American and 
foreign. The constitution requires " a supreme court " ; but 
Congress determines the number of judges, their salary, and to 
some degree their jurisdiction. The original court in 1790 had 
6 judges; in 1808, 7; in 1837, 9; in 1863, 10; in order to 
prevent Andrew Johnson from making appointments the court 
was reduced to 8, but was increased in 1870 to 9, where it has 
since stood. 

The Supreme Court sits in Washington, at present in the 
small and rather incommodious chamber at the Capitol which 
for many years was occupied by the Senate. It is ordinarily 
in session from October till May. It appoints its own mar- 
shal, as well as its clerk and reporter. Until recently it was 
not the custom to affix to decisions the exact dates when they 
were rendered ; hence a case which appears in the books as 
decided in the "October term, 1885," may actually have 
been decided in the course of that term sometime in 1886. 

The method of the court is to hear arguments and receive 
printed briefs ; the judges then compare views, and the chief 
justice designates some justice to prepare a written opinion. 
That opinion is later submitted and discussed. If any mem- 



302 Federal Courts. [§ 138 

bers of the court are unable to coincide, they have a right to 
prepare dissenting opinions : sometimes there will be one 
" opinion of the court " and a single dissenting opinion signed 
by one, two, three, or four justices ; sometimes each dissentient 
prepares his own opinion ; sometimes, as in the Dred Scott 
decision of 1857 and the Insular cases of 1901, almost every 
justice states his opinion separately, perhaps expressing differ- 
ent reasons for coming to the same conclusion. 

All these opinions are printed and published in official 
volumes, which are universally considered to be the most au- 
thentic statements of the principles of the federal constitution, 
because they include historical as well as legal arguments, and 
because they state not only conclusions but the lines of argu- 
ment which led the judges to those conclusions. The publi- 
cation of the reports is furthermore a check upon all national 
and state courts, since it compels them to take notice of pre- 
vious decisions on the same issues ; hence it is an aid to sta- 
bility in the constitutional law of the country. The annual 
number of decisions made and reported by the Supreme 
Court is about 350. 

As in the case of state courts, these decisions directly affect 
only the parties to the pending suits. If the court decide, 
for instance, that a patent belongs to one claimant, the other 
party will make himself liable for contempt of court if he 
ignores the decision. Other people, not parties to the suit, 
may ignore the patent without that penalty ; but they know 
beforehand that any suits brought against them on that issue 
will result in their defeat. 

The inferior courts of the United States are now arranged in 
three groups, ascending to the Supreme Court but not corre- 
sponding with the subdivisions of the judges : thus, a district 
judge may hold circuit court ; a circuit judge may hold dis- 
trict court ; a district judge may be transferred into another 
district. The underlying idea is that the business shall be 
sifted by proceeding from one court to another ; and the system 
of exchanging judges makes it possible to use a judge in a 



§ 138] Inferior Courts. 



303 



district where there is a congestion of cases. If a judge is per- 
sonally interested in the case that comes before him, he with- 
draws. Many original cases involving issues of fact are tried 
by jury. 

The lowest regular United States courts are the district 
courts (at least one in each state), before which most federal 
suits are brought. Next in the series are the circuit courts. 
The original plan was that the Supreme Court justices should, 
besides their general business, each act as a judge in a circuit 
court, sitting along with a district judge. From the first, the 
Supreme Court justices complained of the hardship of this 
double function, and in 1801 a distinct class of circuit judges 
was created to relieve them of that part of their work ; but the 
act was repealed a year later. The Supreme justices con- 
tinued on circuit until 1869, when the country was divided 
into nine circuits, and nine circuit judges were again appointed. 
Since that law, the Supreme Court justices occasionally appear 
and formally open a session ; but the business is practically done 
by the special circuit judge or a district judge, or by the circuit 
and district judges sitting together. The circuit courts have 
original jurisdiction in many cases ; but their business is largely 
the hearing of cases removed from state courts in suits where 
there is concurrent jurisdiction. 

In 1 89 1 it was found that the Supreme Court was about four 
years behind its docket, and hence midway between the circuit 
courts and the Supreme Court, by act of March 3, 1891, were 
created nine " Circuit Courts of Appeals," and additional cir- 
cuit judges were provided for ; so that at present seven of the 
nine circuits have each three circuit judges, and the other two 
have each two judges. To constitute a court, two judges must 
sit. On many cases the Circuit Court of Appeals has a final 
decision, not subject to appeal to the Supreme Court ; but all 
district and circuit court decisions involving the federal con- 
stitution, laws, or treaties, or the constitutionality of state acts, 
may be reviewed by the Supreme Court. 

In addition, the United States has created several special 



304 Federal Courts. [§ 139 

courts, of which the most important is the Court of Claims in 
Washington, composed of five justices with a salary of ^4,500 
each. It has power to try cases of claims against the United 
States ; if it finds money due, it certifies the amount to Con- 
gress, which appropriates for the purpose ; it has no power 
to enforce a judgment against the United States. By an act 
of March 3, 1891, a Court of Private Land Claims was created, 
with five justices, their jurisdiction extending only to claims 
arising from or under the treaties of territorial cession by 
Mexico in 1848 and 1853. 

Entirely outside of the judicial system are several national 
tribunals for federal matters. Such are the courts created by 
Congress in the District of Columbia, in the territories, among 
the Indians, and in the dependencies, under the special powers 
of the United States over the seat of government and the 
" territory or other property " of the United States. Such are 
the military and naval courts martial provided under the gen- 
eral authority of the United States to raise and govern armies 
and to make war. Such are the administrative tribunals 
attached to several of the executive departments : the com- 
missioners of public lands and of patents render elaborate 
decisions, which are printed in regular series of Reports of 
Cases ; the Treasury Department makes rulings on contested 
questions within its field of administration. So far as such 
decisions involve questions of property and of individual rights, 
they are appealable to the regular judicial courts. 

139. Process of Impeachment. 

A special method of ascertaining the guilt or the innocence 
of public officers charged with a crime is impeachment. This 
process has two roots : one in the original idea that Parlia- 
ment was a " high court," a tradition still preserved in the 
English practice of making the House of Lords the final 
court of appeal in certain cases ; the other in the desire of 
the House of Commons to control the executive business in 
England, which they could do only by exercising authority 



§ 139] Impeachment. 305 

over the king's civil officers. The process of impeachment 
was hence devised in order to remove from office ministers 
obnoxious to Parliament, and it was applied several times 
under the Stuarts ; the latest English case was that of Lord 
Melbourne in 1806. 

In the colonies there was no process of impeachment, be- 
cause the chief executive officers were never subject to the 
authority of the assembly ; but the process was revived in 
the new state constitutions, and is tolerably frequent against 
state officers of every kind. 

The process was distinctly set forth in the federal constitu- 
tion. The House technically "impeaches," — that is, by a 
majority vote it presents articles of accusation ; the Senate 
then " tries impeachments," The president, vice-president, 
and all civil officers of the United States are subject to im- 
peachment, and the process has been directly invoked in 
the following cases: — (i) In 1798 William Blount, senator 
from Tennessee, was impeached, but escaped on the ground 
that a senator was not a civil officer. (2) In 1803 District 
Judge Pickering was impeached and convicted. (3) In 1805 
Supreme Justice Chase was impeached, but no two-thirds 
majority could be obtained against him. (4) In 1830 Dis- 
trict Judge Peck of Missouri was impeached for arbitrary 
punishment of an attorney, but was acquitted. (5) In 1862 
District Judge Humphreys of Tennessee was impeached for 
accepting the office of Confederate judge, and was unani- 
mously convicted. (6) In 1868 President Johnson was im- 
peached for violating the Tenure-of-Office Act and on other 
charges; the test vote was 35 for conviction and 19 for ac- 
quittal, and the prosecution failed for lack of one vote. 
(7) In 1876 William Worth Belknap, secretary of war, was 
impeached for bribery; but the impeachment failed for lack 
of one vote. 

Thus, impeachment has been attempted by the United 
States only seven times : four times against judges, two of 
whom were removed ; once against a senator, once against 

20 



306 Federal Courts. [§ 140 

a cabinet officer, and once against a president of the United 
States. Undoubtedly the knowledge that there is such a pos- 
sibility as impeachment has been a deterrent in the minds of 
other public servants. The failure to convict President John- 
son was a public advantage, for his real offence was that he 
was opposed to Congress ; and he had but a few months more 
in office. Had a precedent been established that a president 
could be removed because two thirds of the senators did not 
like his policy, the independence of the executive must have 
been destroyed. 

One of the difficulties in applying impeachment is that it 
can be invoked only in case of " treason, bribery, or other 
high crimes and misdemeanors," and hence will not lie except 
for offences which could be punished in the ordinary courts. 
Indeed, under the constitution the penalty of impeachment 
can be only removal from office and disqualification from 
further public service, and the party is thereafter liable to 
punishment according to the ordinary law. For the object of 
impeachment is not to punish for wrong-doing, but to put the 
individual out of the opportunity for further wrong-doing. 

140. Federal Writs. 

Like the state courts, the federal judiciary deals almost 
exclusively with specific cases. The justices of the Supreme 
Court refused to give opinions on the constitutionality of 
pending measures when President Washington requested them. 
The nearest approach to advice by the courts is the procedure 
of the Court of Claims under the so-called " Bowman Act " of 
March 3, 1883, by which the head of any executive depart- 
ment, or either house of Congress, or any committee, may 
submit or refer any claim or matter for the judgment of the 
court, such judgment to be sent to the party requesting the 
opinion for his guidance. Under special statutes, federal 
judges sometimes make appointments, as of the bankruptcy 
commissioners in 1867, and of supervisors of federal elections 
from 1873 to 1894. 



§ i4o] Federal Writs. 307 

The normal function of federal courts s to make judicial 
decisions in cases actually brought before them on conten- 
tions which involve the actual legal rights of at least two 
genuine parties. Nevertheless, like the state courts, they 
issue a variety of writs preliminary to suits, often on the rep- 
resentation of one party only. Among minor federal writs 
authorized by the judiciary acts are the following: (i) sci7-e 
facias, used to enforce or vacate a judgment, recognizance, or 
patent; (2) quo warranto, commonly directed to a person 
holding office in violation of the federal constitution or laws, 
or to a corporation, directing it to show cause why its charter 
should not be forfeited; (3) ne exeat, granted in equity cases 
to prevent the defendant from leaving the United States; (4) 
certiorari, issued to call up for review in a superior court the 
record of a proceeding in an inferior court; (5) supersedeas, 
used to stay proceedings which ought otherwise to be carried 
forward. Execution is the order or warrant given to an officer 
to carry into effect the judgment of the court. 

The three most important federal writs are habeas corpus, 
mandamus, and injunction. The general principle of habeas 
corpus has been discussed above. It is frequently invoked 
before federal courts in order to test the legality of an arrest 
under state authority. In the case of the Haymarket murder- 
ers in Chicago in 1886, it was prayed for before the Supreme 
Court of the United States on the ground that there were 
informalities in the trial contrary to the personal rights guar- 
anteed by the constitution : the court declined to interfere. 

The writ of mandamus may be directed to individuals or 
corporations to compel them to perform neglected duties, 
and is often granted by the Supreme Court against lower 
courts which have declined to take jurisdiction ; but a more 
common use is against federal officials of every kind. Man- 
damus has frequently been sought against cabinet officers : in 
Kendall \. United States (1838), mandamus was issued against 
Postmaster-General Kendall to compel the payment of certain 
money. 



308 Federal Courts. [§ 140 

The writ of injunction takes many forms. ( i ) It may be a 
temporary restraining order, to prevent one of the parties to 
a suit from disposing of property, or otherwise altering the 
existing status, pending a hearing on the merits. (2) It may 
be a permanent injunction forbidding a person to perform 
an act which would create consequences that could not be 
remedied by a later suit. For instance, injunction may be 
sought to prevent a board of directors from issuing new stock 
to the prejudice of former stockholders, because such stock 
once issued and sold to innocent purchasers could not be 
recalled. 

(3) Of late years injunction has been pushed much farther. 
The United States courts have repeatedly issued " blanket in- 
junctions," forbidding all persons from interference with par- 
ticular federal functions. The most interesting case is that of 
Debs in 1894. The district court in Chicago issued an in- 
junction forbidding all persons to obstruct the circulation of 
mails or the movement of interstate commerce. Debs was 
the leader of a strike in Chicago which was preventing the 
railroads from running, and for alleged refusal to observe this 
injunction he was arrested, fined, and imprisoned. The point 
made by Debs's counsel was that, if his client had done any- 
thing unlawful, he was entitled to a jury trial ; that the court 
was not competent to add another penalty not defined by 
statute ; and that injunctions did not lie against acts which 
were punishable under ordinary criminal law. The Supreme 
Court, on appeal, in 1895 affirmed the right of the lower 
court to grant the injunction. 

The Debs case also illustrates another very important power 
of the court, — namely, to punish for contempt of court. This 
is an indefinite phrase which covers disrespect by counsel 
or witnesses, threats or actual personal violence against the 
judge, or neglect or refusal to take notice of writs issued by 
the courts ; and sometimes it applies to public or newspaper 
statements that the judge is prejudiced. A judge has the 
right to direct the marshal and his deputies to arrest any such 



§ i4i] Federal Law. 



309 



offending person and bring him before the court ; an apology 
or a promise of obedience may be accepted, or the court may 
punish by fine or imprisonment. So far as the personal pro- 
tection of the judge goes, committal for contempt is absolutely 
necessary; but the arrest and imprisonment of persons who 
are charged with offences which might be punished in the 
ordinary method is contrary to the ordinary principles of free 
government. 

141. Cases involving Federal Law. 

The national courts are not created solely to apply national 
legislation, but to apply all the various kinds of legislation 
to national issues. A federal statute, a treaty, an executive 
order, a state constitution or statute, a municipal ordinance, 
a vote of the directors of a railroad, may all be parts of the 
legal conditions which a federal court must take into account. 
In like manner, state courts are constantly called upon to take 
cognizance of and to apply the federal constitution, statutes, 
and treaties. The fundamental principle is that the national 
courts shall, primarily or by appeal, have the right to decide 
all cases involving the exercise of federal authority or of rights 
and privileges created under the federal constitution. Such 
cases may arise either from the nature of the law applied or 
from the character of the parties to the suit. Let us first con- 
sider the various kinds of law referable to federal courts. 

(i) We have seen that on questions not distinctly covered 
by the statutes the state courts refer to the "common law," — 
that is, to precedents of English traditional law as set forth 
in English, colonial, and state decisions. The United States 
courts make use oi. procedure under the forms of common law, 
even without a statute ; but they refuse to take cognizance of 
criminal offences or to affix penalties, unless there be a dis- 
tinct federal statute on the subject, and such statutes must 
relate only to crimes committed against the United States. 
In trials for violation of state laws, no questions are appealable 



3 I o Federal Courts. t§ 142 

to the federal courts except those arising out of the federal 
constitution or laws. 

(2) Exclusive federal jurisdiction extends to "all cases of 
admiralty and maritime jurisdiction." This means cases aris- 
ing on the high seas and also on internal lakes and rivers, in- 
asmuch as such cases may occur outside any state, and always 
concern general trade and traffic. A kindred special clause 
authorizes Congress to make rules concerning " captures on 
land and water," which is really a part of the war power. 

(3) An important field of federal jurisdiction is that of 
international law. Cases affecting ambassadors, other public 
ministers, and consuls are especially mentioned ; but many other 
cases arise under treaties or under international relations. 

(4) To the United States courts go " all cases in law and 
equity arising under the constitution, the laws of the United 
States, and treaties made, or which shall be made, under their 
authority." This is the broadest field, for it enables the 
United States courts to compel the same construction of the 
federal constitution in all parts of the Union, and reserves to 
federal authority the right of maintaining federal laws. This 
power is absolutely opposed to the doctrine of state rights, 
which asserts the power to withdraw a state from the opera- 
tion of federal laws. 

142. Cases involving Federal Parties. 

The other reason for special federal jurisdiction is the char- 
acter of the parties. 

( 1 ) Foreign diplomatic agents as parties may sue or be 
sued only in the federal Supreme Court. 

(2) Reserved for federal decision are "controversies be- 
tween a state or the citizens thereof and a foreign state, citizens, 
or subjects." The purpose is to give to the United States, 
which controls foreign relations, sole authority over foreign 
questions ; but suits by foreign governments are extremely 
rare. The emperor of the French in 1870 entered suit in an 
admiralty case in California. 

(3) Federal in their nature are "controversies to which 



§ 143] Federal Parties. 311 

the United States shall be a party." Since all federal criminal 
suits are brought in the name of the United States as plaintiff, 
this clause alone would give exclusive jurisdiction in federal 
criminal law; but the United States may also sue individuals 
for debt, for the non-fulfilment of a contract, or for wrongful 
possession of property. The principle is not applied against 
the United States : as a government exercising sovereign 
powers, suit will not lie against it without its consent. Such 
consent is sometimes given by acts of Congress; and the 
Court of Claims regularly entertains suits on private claims. 
In proceeding under the writ of error, the names of the par- 
ties are frequently reversed, so that United States v. Jones in 
the circuit court appears as Jones v. United States in the 
Supreme Court ; but such cases are held to be a continuation 
of the original suit, and not a case brought against the United 
States. 

(4) The next great category is that of suits "between 
citizens of different states, and between citizens of the same 
state claiming land under grants of different states." This 
clause gives rise to abundant litigation, for under it a claim 
which has arisen solely under state law may be sued in a 
federal court. Thus, a citizen of New York may enter suit 
to collect a debt against a Massachusetts citizen either in a 
Massachusetts court or in a federal court. One object of the 
clause is impartiality, which might not be secured in a state 
court toward a citizen of another state. 

(5) Damage suits against federal officials for illegal be- 
havior in office naturally go to federal courts. In France and 
Germany, an officer of the government who wrongfully per- 
forms an act under color of official authority can be sued only 
in an administrative court, practically composed of members 
of the executive. In England and the United States the con- 
trary principle prevails : an official or an ex-official has no 
protection from his relation to national, state, or municipal 
government, other than that he may be aided by public 
attorneys. Nowhere in the federal system, either in the con- 
stitution or in practice, is there any limitation on suits by 



3 1 2 Federal Courts. [§ 143 

private individuals against public functionaries in the ordinary 
courts. 

143. States as Parties in Federal Suits. 

The judicial power extends also " to controversies between 
two or more states ; between a state and citizens of another 
state ; and between a state . . . and foreign states, citizens, 
or subjects," The provision that states should be amenable 
to the jurisdiction of a court was not wholly new in American 
government ; for before the Revolution disputes between 
colonies, especially on questions of boundary, had been sub- 
ject to decision by the Privy Council in England ; and under 
the Articles of Confederation there was a clumsy system for 
settling disputes between states by a commission appointed 
by Congress. It was, however, almost without precedent in 
the history of federal government that a judicial court should 
be established before which states should be obliged to appear 
as defendants. So far as states were plaintiffs, either against 
citizens of other states or against foreign states or citizens, the 
constitution thus provided a convenient meeting-ground ; but 
in suits of state against state, and especially of citizens of an- 
other state or of a foreign state against a state, submission to 
the judgment of the Supreme Court was practically a denial 
of state sovereignty. 

An issue on this question was speedily raised. In 1793 suit 
was brought by one Chisholm against the state of Georgia for 
payment of a d^bt. Although the government of Georgia ab- 
solutely refused to appear or plead or recognize the jurisdic- 
tion of the court, judgment was given by default. At once 
the Eleventh Amendment to the constitution was introduced, 
passed the Senate by 23 to 2, the House by 81 to 9, and 
four years later was added to the constitution. It provides 
that " the judicial power of the United States shall not be 
construed to extend to any suit in law or equity commenced 
or prosecuted against One of the United States by citizens of 
another state or by citizens or subjects of any foreign state." 



§ 143] States as Parties. 313 

This principle was still further extended from 1882 to 1887 
by decisions of the Supreme Court in the Virginia coupon 
cases, the point of which was that the state of Virginia had 
made the interest coupons on certain bonds receivable for 
taxes, but afterwards refused to receive them. A suit against 
the state treasurer to compel the reception was held to be 
practically a suit against the state, and therefore contrary to 
the Eleventh Amendment (/« re Ayres, 1887). This goes very 
far toward estabhshing the principle that there is no judicial 
machinery in the federal government through which states can 
be compelled to pay money on private suits. In 1889 the 
Supreme Court decided that a state could not, without its 
consent, be sued in a United States court by its own citizens. 

Nevertheless, some of the most interesting cases ever brought 
before the Supreme Court have indirectly affirmed the right 
of the United States courts to decide controversies between 
states and individuals. One of the earliest was the case of 
United States v. Judge Peters (1809), in which the Pennsyl- 
vania state authorities, by armed militiamen, protected certain 
persons against a marshal who attempted to arrest them 
under the authority of the United States courts ; the state 
eventually gave way and allowed the federal courts to have 
their will. In the suit oi Martin v. Htmter's Lessee (181 6), 
the Supreme Court compelled the Court of Appeals of Vir- 
ginia to follow the mandate of a writ of error. In Cohe?is v. 
Virginia (182 1), the Supreme Court laid down the great doc- 
trine that, although the Cohens were citizens of Virginia, an 
appeal could be obtained through writ of error in a criminal 
suit prosecuted against them by Virginia. The court held 
(i) that, since the case involved a privilege under federal law 
denied by the state court, it was a federal case, even though 
a state was a party ; and ( 2 ) that, since the original suit was 
not commenced or prosecuted against Virginia but begun by 
the state, and since suit was afterwards continued by the writ 
of error, the Eleventh Amendment did not apply. 

From that time there have been few attempts to deny the 



314 Federal Courts. [§144 

authority of federal courts in such appeal cases, and numbers 
of suits arise against private parties which involve as collateral 
questions the powers of state governments ; so that states are 
both directly and indirectly brought before the tribunal at 
Washington. In 1833, by the Nullification Ordinance and 
subsequent legislation, the state of South Carolina forbade 
appeals in revenue cases; but the so-called "Force Act" of 
Congress reiterated the authority of the United States. After 
the Civil War an attempt was made by New York holders 
of Louisiana bonds to transfer their holdings to the state of 
New York, which then entered suit for collection ; but the 
Supreme Court refused to consider the case on the ground 
that it was not a bona fide transfer. A very curious attempt 
by a state to sue an individual was the case of Mississippi v. 
Johnson (1866), which was an application to the Supreme 
Court for an injunction to prevent President Johnson from 
carrying out the reconstruction statutes in Mississippi. The 
court without dissent refused to .entertain a suit in matters 
" executive and political." 

At present the position of the Supreme Court is that it will 
not take action to compel a state formally to appear against 
its will, except on the suit of another state ; that it will not en- 
tertain suits against state officials, to compel them to perform 
duties against the will and direction of their state government ; 
but that in controversies begun by a state against an individual, 
it will take jurisdiction on writ of error, and may decide against 
the state. In cases between individuals also, the Supreme 
Court freely discusses the statutes of the states, and often lays 
down limitations on their powers. 

144. Appeals. 

The Supreme Court has original jurisdiction in cases involv- 
ing foreign representatives or states as parties ; other distinctly 
federal cases must be brought in the inferior national courts. 
In addition, the Supreme Court " has appellate jurisdiction 
both as to law and fact, with such exceptions and under such 



§145] Appeals. 315 

regulations as Congress shall make." Furthermore, "this 
Constitution and the laws and treaties made in pursuance 
thereof shall be the supreme law of the land, and the judges 
in every state shall be bound thereby, anything in the con- 
stitution or the laws of any state to the contrary notwith- 
standing." 

To carry out the latter provision, Congress has passed a 
series of statutes regulating appeals from inferior national 
courts. In 1789 it provided a method, never since altered, 
for appeal from state courts : in every case in which a state 
court questions the validity of a federal statute, or in which 
privileges claimed under the constitution are denied by the 
state court, there are three methods by which the suit may 
be transferred to a federal court : — 

(i) Removal. In most cases involving federal law, there 
is concurrent jurisdiction, — that is, the case may be brought 
in either state or national courts ; if entered in a state court 
and still pending, it may be " removed " to one of the lower 
federal courts, and the state court is thereupon bound to desist 
from further proceedings. 

(2) Appeal. This term strictly means a re-trial of both 
law and fact. Cases may be carried by this process from 
lower to higher federal courts, but not from state to federal 
courts. 

(3) Writ of error. This is a revision, by the higher court, 
of points of law decided by the lower court : a copy of the 
record must be sent up, setting forth the rulings of the lower 
court ; if the higher court sees cause, it issues a writ of error, 
directing the lower court to alter its decision. Most of the 
Supreme Court cases of the United States are now brought up 
by this process from the United States courts or from state 
courts, and such a proceeding is popularly called an "appeal." 

145. Declaring Acts Void. 

The federal courts have an immense power over the state 
governments, through their right to declare state statutes void. 



3i6 Federal Courts. [§ 145 

Although in 1787 scarcely any state was yet committed to the 
doctrine that its own courts could hold its own statutes uncon- 
stitutional, the federal constitution most distinctly and inten- 
tionally gave to the federal courts the power of disallowing 
state statutes because not in accordance with the federal con- 
stitution, or with laws or treaties made in pursuance thereof 
by the United States. 

The history of the Federal Convention shows that the 
original plan was to give Congress a right to set aside state 
legislation, just as it may now reject territorial laws ; that after 
long debate the plan was voted down, and that on the same 
day was introduced a project which gave to the federal judi- 
ciary power to interpret the constitution as the supreme law 
of the land. The constitution therefore restored the familiar 
system of disallowing colonial laws, even though approved by 
the colonial governor ; but with the important difference that, 
while the crown might disallow colonial statutes for any reason 
that seemed good to it, the Supreme Court could set aside 
state statutes only in case they were contrary to federal law. 

The principle involved is not the right to call up a state 
statute and annul it, but simply that a state statute contrary to 
the federal constitution or statutes cannot possibly come into 
being; that from the moment of its passage it has no life or 
force ; and that therefore the court may leave it out of account 
in making up its mind. 

The first distinct application of this great power was in the 
case of United States v. Judge Peters (1809), in which an act 
of the state of Pennsylvania, intended to prevent a decision by 
the court, was declared to be of no effect. Since that time 
there have been scores of such disallowances, including parts 
of state constitutions. For instance, in Cummings v. Missouri 
(1866) certain sections of the constitution of 1865 of Missouri, 
disfranchising and otherwise disqualifying persons who had 
aided the Confederate States, were disallowed because ex post 
facto and of the nature of bills of attainder. 

Through sbch federal decisions the boundary-line between 



§ Ms] Declaring Acts Void. 3 1 7 

state and federal powers has been drawn; for the Supreme 
Court constantly applies the limitations of the constitution 
upon states, and defines the border ground of legislation. 
For instance, in Gibbons v. Ogden (1824) the Supreme Court 
disallowed a New York statute giving a monopoly of steam 
navigation on the Hudson, on the ground that the Hudson 
was usable for foreign commerce. In 1891 the same court 
disallowed a Virginia statute requiring inspection of dressed 
meats, for the reason that it was a restriction of interstate 
commerce. Tax acts of the state have also been frequently 
set aside, the most notable case being McCulloch v. Mary- 
land (18 19), when a tax on the United States Bank was 
held invalid because the bank was an agency of the federal 
government. 

Another long series of federal decisions on state acts is 
based on the clause that no state shall pass any law impairing 
the obligation of contracts, — a clause presumably introduced 
in order to prevent the enactment of such statutes as the stay 
and tender laws of states after the Revolution, by which the 
collection of private debts was delayed or prevented. In the 
hands of the Supreme Court the clause was speedily applied 
to legislative grants and charters. In the Yazoo land case of 
Fletcher v. Peck (1810), it was held that a grant of land once 
made by a Georgia legislature could not be revoked by a sub- 
sequent legislature, because it was a contract with the grantee. 
In the Dartmouth College Case (1819), the principle was 
widened by holding that a charter given to a college corpora- 
tion for the public purpose of educating young men was like- 
wise an irrevocable contract. During the last half century the 
Supreme Court has somewhat withdrawn from this extreme 
ground, by developing the doctrine of police power ; but the 
general principle holds that, if a state legislature or a city 
council under state authority grants a charter or a franchise 
without a limit qf time or the reserved right to alter, it is a 
perpetual grant. Under this principle states and cities have 
forever parted with privileges worth millions of doUa,rs, 



3i8 Federal Courts. [§ 145 

Disallowance of federal statutes by the federal courts is not 
distinctly set forth in the constitution, and it was many years 
before it became clear that such a power was necessary for 
the maintenance of a federal government. It is a power 
unknown to the Enghsh courts, and is prohibited by the fed- 
eral constitution of Switzerland. In Hayburn's Case (1792) 
and United States v. Yale Todd (1794), the justices indicated 
their unwiUingness to accept non-judicial duties, though pre- 
scribed by acts of Congress ; but Marbury v. Madiso7i (1803) 
was the first case in which a federal statute was declared out- 
right unconstitutional, and that decision was really political 
and based on narrow technicalities, and the court ended by 
denying its own jurisdiction. The control of the executive 
and legislative departments had passed from the Federalist 
to the Repubhcan party ; but the Supreme Court was still 
Federalist, and the decision was intended to be a defiance of 
Jefferson. 

It was fifty years before the Supreme Court again declared 
an act void, this time in the case of United States v. Ferreira 
( 1 85 I ) ; but that case, like Afafbufy v. Madison, was a question 
of the organization of the judiciary. The Dred Scott Case in 
1857, seventy years after the framing of the constitution, de- 
clared that the Missouri Compromise of 1820 was not author- 
ized by the constitution ; and this is really the first instance 
of setting aside a broad statute based on the general powers 
of Congress. Even this statute had been repealed by Con- 
gress three years before the decision ; and five years later 
Congress abolished slavery in the territories, in flat defiance 
of the Supreme Court. 

It is therefore accurate to say that not till the Civil War 
was over did the Supreme Court begin systematically to dis- 
allow acts of Congress not relating to the judiciary. Once 
started, it went very far. The most remarkable of the new 
cases was the disallowance of the legal-tender act, in Hepburn 
V. Griswold (1870), by four judges to three; the very next 
year that case was reversed by five judges to four. Among 



§ i4S] Declaring Acts Void. 319 

about fifteen other instances within the last thirty years, the 
most notable are the Civil-Rights Cases (1883— 1884), in 
which acts for the benefit of negro citizens were disallowed ; 
the Trade- Mark Cases (1879), in which the power of the 
United States to register trade marks on general commerce 
was denied ; and the Incor7ie-Tax Case (1895), in which, by a 
majority of one, a tax on incomes was held to be unconstitu- 
tional, because it was a direct tax which must be apportioned 
by population. In 1901, when great pressure was put upon 
the court to disallow statutes on the taxation of dependencies, 
the acts of Congress were upheld by five judges to four. 

While the Supreme Court freely and frequently throws out 
local and state statutes, it hesitates to invalidate national 
statutes, and has done so in few cases except in the settle- 
ment of the confusion arising out of the Civil War. The 
Supreme Court acts on the presumption that Congress is 
within its powers, unless a case too strong for it to ignore 
is made out. 



Part VI. 
Territorial Functions. 



CHAPTER XVIII. 

LAND AND LAND-HOLDING. 

146. References. 

Bibliography: A. B. Hart, Manual (1908), §§ 115, 116, 294; Provi- 
dence Public Library, Monthly Bulletin, II, 82-84 (1896) ; Charming and 
Hart, Guide (1896), §§ 179, 185; Mtmicipal Affairs, V, 212-216 (1901). 
See also references in chs. i above, xix below. 

Private Land-Holding: Legal treatises on real property, espe- 
cially, E. P. Hopkins, Real Property (1896) ; C. S. Tiedeman, Am. Law 
of Real Property (2d ed., 1892) ; E. Washburn, Am. Law of Real Property 
(3 vols., 6th ed., 1902); J. Lewis, Eminent Domain (1888); T. M. 
Cooley, Constitutional Limitations {6th ed., 1890), ch. xv ; U. S. Twelfth 
Census (1900), Reports, V, pt. i (farms). 

National Public Lands: A. Shaw, Political Problems (1907), ch. 
iv ; S. Sato, History of the Land Questioti (1886) ; A. B. Hart, Practical 
Essays (1893), No. 10 ; G. W. Knight, Land Grants for Education (Am. 
Hist. Assoc, Papers, I, 79-247, 1885) ; C. H. Haskins, Yazoo Land Com- 
panies {Ibid., V, 395-437, 1891) ; J. C. Welling, States' -Rights Conflict 
over the Public Lands {Ibid., IH, 411-432, 1889); B. A. Hinsdale, Old 
Northwest (1888), ch. xiv ; C. E. Hay, U. S. Military Reservations, Na- 
tional Cemeteries and Military Parks (1904). — Sources : Commissioner 
of Public Lands, Annual Reports ; Bureau of Forestry, Reports and Bulle- 
tins ; special periodicals, including National Geographical Magazine. 

Parks and Forest Reserves : Niagara Reservation Commission, 
Annual Reports (i884-) ; New York Forest Commission, An)iual Reports, 
especially 1890 (Adirondack forest). See also reports of state and city 
park commissioners ; reports of superintendents of national parks, in the 

320 



§147] Functions of Government. 321 

Annual Report of the Secretary of the Interior ; American Forestry 
Association, Bulletins ; Am. Civic Association, Reports. 

Seat of Government : W. F. Willoughby, Territories and Depen- 
dencies (1905), ch. x; J. B. Varnum, Seat of Government (2d ed., 1854); 
C. Meriwether, Washington City Government {Pol. Sci. Quar., XII, 407- 
419, 1897) ; J. A. Porter, City of Washington [Johns Hopkins University, 
Studies, III, Nos. 11-12, 1885); M. B. Tremain, Slavery in the D. C. 
(1892) ; R. R. Wilson, Washington, the Capital City (1901) ; W. V. Cox, 
Celebratiojt of the one Hundredth Anniversary (1900). — Sources.' Com- 
missioners of the District of Columbia, Annual Reports. 

147. Functions of Government. 

In a previous part of this work, attention has been called to 
the forms of American government and to the officers who 
carry it on ; the remainder will be devoted to a study of the 
functions of government. Although in theory the sovereign 
power can always do anything within the reach of human 
forces, in practice it undertakes only such tasks as cannot be 
done by any other agency, or as are manifestly better carried 
on by public than by private instrumentality. War, foreign 
relations, the punishment of evil-doers, cannot be turned over 
to individuals or corporations ; education, protection from 
fire, water supply, are better, easier, and more economical as 
public services. 

The boundary-line between the things which guvernment 
does, the things which it permits individuals to do under 
specific governmental supervision, and the things which the 
individual may do subject only to general restrictions, cannot 
be drawn a priori : the socialist will have government under- 
take every service that can be performed on a large scale ; 
Thomas Jefferson wanted the least possible intervention of 
government. In this work we shall seek to discuss only 
what American governments actually undertake, and shall 
classify public services, for convenience, under five main heads, 
— territorial functions, financial functions, external functions, 
internal commercial functions, and general welfare. Under 
each of these heads will be discussed the division of functions 
between nation, states, and local governments. 

21 



322 Landholding. L§ 148 

148. Private Landholding. 

The first element of national, as of individual, life is a spot 
of ground on which to stand ; and the first question is, Who 
owns the land? (i) In some countries it is held by the 
community in general. For instance, much of the Russian 
farm land is the common property of the villages ; for a few 
years the Pilgrim setders of Plymouth held lands in common, 
but arable " commons " are now almost unknown in the 
United States. (2) In the colonial period Americans had a 
little experience of another form of ownership, — the feudal. 
Under the theory of feudal tenure, the whole land of the 
kingdom was the property of the crown, who could grant it to 
such of his subjects as he chose, on condition that they render 
him military or other service. The feudal tenure was dying 
out in England just at the time of colonization, and, though 
established in Canada and attempted in Carolina, the colonists 
looked upon it with disfavor. (3) Landholding subject to a 
quit-rent, or annual payment to state or proprietor, was tried 
in the colonial period ; but it led to revolt and was eventually 
abandoned. (4) The normal condition of landholding in 
America has always been considered to be private ownership 
by individuals (or corporations), subject almost wholly to 
state law. 

The landowner is bound not to allow disorderly or poison- 
ous or noisy business on his land, to the disregard of the rights 
of other persons. Ownership of land includes the right to 
put structures upon it and to dig beneath it, and to use any- 
thing found below the surface. The United States might well 
have followed the German practice, by which minerals below 
the "surface are not the property of the landowner but of the 
state. In America the owner of the soil owns the coal, iron, 
lead, gold, silver, or oil that may be extracted from any point 
perpendicularly beneath his surface holding. 

One element of the value of land is the ease and quickness 
with which it can be bought and sold. In England the trans- 



§ 148] Private Land. 323 

fer of land involves such expense that it is hard to buy small 
tracts advantageously. The American colonists and their de- 
scendants have devised and carried out a system of land 
transfer under which all sales, transfers, and mortgages of 
lands which are recorded — for very moderate fees — have 
legal force. Thus, if a man gives a deed of sale, and then 
a second deed, he may afterwards be punished for fraud ; 
but the second deed will hold if it is presented for record at 
the public office before the first one. The first thing that a 
careful buyer of property does is to have an " abstract of 
title " made, — that is, a careful search through the records 
to see whether the person seUing the land is legally pos- 
sessed. In six states, by the so-called Torrens system, the 
state (in Massachusetts, the counties) will, if desired, make a 
search into a title,' and give a certificate which is an absolute 
guaranty of title and possession. 

Public taxes are a first lien on real estate. If taxes are 
long unpaid, the property is advertised for sale, and anybody 
who will pay more than the taxes due gets what is called a 
"tax-title," which means that, unless within a fixed time the 
original owner appears, claims his land, and pays up the back 
taxes, the purchaser will presumably own the land. If land is 
abandoned and thrown up by its holders, it almost always be- 
comes public property through the non-payment of taxes : the 
New York state forest in the Adirondacks is in part thus 
obtained by the state. 

The ease of tracing titles makes it safe to lend on landed 
security. A mortgage practically transfers an interest in the 
land to another party, and no subsequent sale can shake off 
the mortgagor's hold. If the money lent is not repaid, there 
is a legal method called " foreclosure," by which the land is 
offered for sale at public auction, and the holder of the 
mortgage is paid out of the proceeds, or perhaps takes the 
land itself. Thousands of millions of dollars are now lent by 
the great savings banks and insurance companies in mortgages 
on improved property. 



324 Landholding. [§ 148 

Private holdings in the United States are very numerous. 
In 1890, 1,700,000 famihes owned real estate on which there 
were mortgages amounting to over ^2,000,000,000 ; while 
about 4,400,000 owned real estate unincumbered, and more 
than 6,600,000 families rented real estate : that is, 12,700,000 
families owned or occupied distinct areas of ground in the 
country and cities. Outside of the cities there were 5,000,000 
families owning real estate, the property of 1,300,000 of these 
families being incumbered to the amount of $1,447,000,000. 
While a mortgage may be incurred simply to pay up accumu- 
lated debt, in more cases it is given as a part of the purchase 
money, and shows thrift ; and in many other cases it registers 
simply a divided title, for the mortgage is profitable both to 
the borrower and to the lender, provided due effort is made to 
pay it off. 

Notwithstanding the millions of tenants in America, es- 
pecially in the cities, we have not developed the foreign sys^ 
tem of large estates divided among tenant farmers. In the 
United States, 1,600,000 families were returned as occupying 
tenant farms in 1890; but tenant farms are commonly owned 
by one family and rented to another. Valuable timber or 
coal or mineral lands are frequently bought up in great tracts 
by a few people, — as the Mesaba iron-ore tracts in Minnesota. 
Twenty years ago a Mr. Delamater in Minnesota had one farm 
of about 50,000 acres of land; it was so big that he started 
ploughing teams in the morning to draw one straight furrow 
across the prairie till noon, and then they turned and 
ploughed another homeward. A few wealthy gentlemen have 
assembled large estates in the country, as for instance the 
Vanderbilt property, " Biltmore," of 100,000 acres, near Ashe- 
ville. North Carolina ; but few individuals hold large quanti- 
. ties of farming land for investment. 

The selling value of land varies all the way from one or two 
cents an acre for desert land, to ^200 a square foot, or at the 
rate of about ^8,000,000 an acre, for good corners in the heart 
of business districts in New York and Chicago. In other 



§ 149] Corporate Land. 325 

countries, especially in England and Germany, where real 
estate is dear and transfer difificult, the possession of land 
carries with it social prestige. This is not the case in the 
United States ; yet well-to-do people enjoy living a consid- 
erable part of the year outside the cities, and hence many 
families own two houses, occupying each a part of the year. 

149. Corporate and Railroad Landholding. 

To the individual the owning of real estate is not an essen- 
tial : nineteen twentieths of the families in New York do not 
own a square inch of ground. It is otherwise with certain 
corporations, which absolutely must have land. The railroads 
are among the greatest landowners in the country. First, they 
must own their roadbeds, which in the open country are com- 
monly from four to six rods wide (^66 to 100 feet), and 
form continuous strips from end to end of the routes, except 
when crossing highways. Secondly, they must have ground 
for stations and sidetracks, and in great cities must often 
have enormously expensive terminals. For instance, about 
1880 the Pennsylvania Railroad bought up and destroyed a 
strip of houses a block wide and a mile long for an elevated 
structure in Philadelphia ; to avoid such immense charges, the 
same railroad now proposes to construct tunnels under the 
Hudson River and the streets of New York, which will aggre- 
gate in cost ^30,000,000. In the whole country there are 
260,000 miles of railway, owning in the average at least twelve 
acres to the mile, or about 3,000,000 acres in all, equivalent 
to the whole area of the state of Connecticut. The trolley 
railroads commonly use the streets, although some of them 
have acquired strips of land for their roads. 

Other great owners of real estate are the manufacturing 
establishments of every kind, some of which have plants cover- 
ing several acres : for instance, the Baldwin Locomotive Works 
in Philadelphia occupy four solid city blocks for workshops. 
Mming and other corporations have control of enormous 
areas of land : for instance, the great railroads serving the 



326 Landholding. [§ 149 

anthracite coal regions in Pennsylvania all own and operate 
coal mines of their own. 

In the far West ranching companies have acquired immense 
and compact areas of government land for cattle ranges. In 
Texas, where the land was never owned by the United States 
government, there are some great estates ; and in California, 
on land grants made before annexation, there is a stock ranch 
of 48,000 acres, a wheat ranch of 150,000 acres, and a vine- 
yard of more than 14,000 acres, each of which is managed as 
a whole and is not subdivided into tenant farms. Large tracts 
of land have also been occupied by irrigation companies, 
which get possession of practically valueless land, and then 
draw water from the streams to make it fruitful. Logging 
companies buy up immense areas of land for timber : the 
valuable pine region in Michigan is now almost entirely 
deprived of white pine, and much of it is reverting to the 
state on tax title. 

An increasing and perplexing form of corporate real estate 
is the mortmain — "dead-hand" — possessions of religious 
and humanitarian bodies, as churches, hospitals, asylums, con- 
vents, schools. These are in many states free of tax, cannot 
legally be given away, and are rarely sold. 

Many of the states prohibit the holding of land by aliens, 
with the express purpose of preventing the building up of 
large estates managed by people who have no other interest 
in the country. With our system of land transfer, these laws 
can be made effective against an individual but not against 
a corporation, which may own real estate or mortgages, or 
may be owned by another corporation which has such mort- 
gages ; so that in practice there seems no remedy against the 
holding of land by people who do not live on it. 

Up to the present time the soundness of country life and of 
local institutions has depended upon the large number of in- 
dependent farmers living on the ground and looking after their 
own interests. Tenant farmers are likely to be shifting, arid 
corporations are commonly little interested in the education 



§ iso] Eminent Domain. 327 

of children, the proper development of roads, and the saving 
of forests. Most of the great ranches, and of the lumber 
and mineral tracts in the country, have been gradually brought 
together by purchase from previous small holders ; in many 
cases the big company has deliberately driven out the small 
holder by fencing in his only road, by stampeding his stock, 
or by buying him out. Throughout the country the tendency 
at present seems to be to increase the large landholdings and 
to diminish the smaller ones ; so that there is less opportunity 
for a young man to start out and earn a farm by his hard 
labor upon it year after year than there was a quarter of a 
century ago. 

150. Municipal Real Estate and Eminent Domain. 

When a man dies without will and without heirs, his prop- 
erty goes, by what is called " escheat," to the crown in 
England and to the state in this country. A kindred right 
of the state is to take possession of real estate for public pur- 
poses, — streets, waterworks, reservoirs, public parks, and sites 
for public buildings. This power of " eminent domain " 
necessarily includes the right of a state, if the owner will not 
accept a price which the government thinks suitable, to submit 
to a suit from the owner, and let the court award a suitable 
price. The right of eminent domain belongs to the states, 
and also to the federal government for federal purposes ; the 
states also permit the local governments to exercise the state 
authority for their needs. 

The great privileges of eminent domain may also be con- 
ferred by the state or the federal government upon corpora- 
tions created for public purposes, which need real estate in 
order to carry out those purposes. Railroads habitually use 
it for securing a right of way and ground for stations. The 
majority of, owners make private terms with the railroad com- 
pany, which insists on its legal privilege only where its offer is 
refused. 

The greatest real-estate owners in the country, next to the 



328 Landholding. [§ 150 

United States government, are the five hundred and odd 
cities, (i) They own the streets, or rather control the land 
so long as used for streets. In many states, streets and roads 
which cease to be public highways revert to the heirs of the 
original grantors. (2) Many cities own waterworks with large 
reservoirs, which perhaps lie outside, the corporate limits of 
the city. (3) The cities own the parks, which are every 
year becoming more and more important. New York about 
i860 created its beautiful Central Park, an example which 
was very slowly followed by other great cities. Until after 
the Civil War not a single great city on sea, lake, or river 
had appropriated any considerable part of the water front for 
a park ; now there are such beautiful water parks as Lincoln 
and Jackson Parks in Chicago, Riverside Drive in New York, 
the Nantasket and Crescent Beach reservations for Boston, 
Gordon Park in Cleveland, the Battery in Charleston, and 
Belle Isle in the Detroit River. 

The trotting horse, the bicycle, and the automobile com- 
bine to demand good roadways in cities ; and hence have 
grown up systems of beautiful boulevards, broad, winding, and 
well-surfaced, reaching from park to park and often from city 
to city. Many cities, particularly New York and Boston, 
have cleared breathing-spaces in the heart of the slums, and 
have constructed pleasure piers and bathing beaches for 
public use. Outside the cities, village improvement societies 
have in many places kept the streets clean, planted shade 
trees, and laid out grass plots. People have at last come to 
understand that open-air spaces in the cities mean not only 
greater happiness to those who have the least opportunity for 
enjoyment, but also the lowering of the death rate and even 
of the criminal rate. 

In a few American cities the community owns some or all 
of the docks, especially in New York, where this public prop- 
erty produces a large income. Had a little more pains been 
taken as the cities grew up, the water fronts, so valuable alike 
for recreation and for commerce, might have been preserved 



§ 151] Municipal. 329 

in nearly their whole extent under the ownership, and to the 
profit, of the municipalities. 

Every city owns many public buildings, — a city hall, 
schoolhouses (often to the value of many millions of dollars), 
engine-houses, police stations, workhouses, an almshouse, 
stables, paving yards, ash dumps, large institutions for the 
care of the defective and delinquent, and so on. Some 
American cities have municipal hospitals, and most of them 
public library buildings. Such holdings of real estate, pro- 
vided by the sacrifices of past generations, are transferred to 
us as a trust. 

151. State Real Estate. 

The states are also large holders of real property for their 
own purposes. Many of them, between 1830 and 1870, 
constructed lines of canal or railroad, a few of which are still 
state property ; and strips of real estate in a few states have 
•recently been taken for commercial or irrigating canals, 

A few states own considerable forests, especially New York, 
which has appropriated to this purpose tracts in the Adiron- 
dacks forfeited for non-payment of taxes, and has bought 
adjacent land outright or got it in exchange for tax lands. 
These forests are administered by state officials, who purpose 
planting the vacant spaces with trees, and managing them for 
the public profit by cutting a small part each year, as is done 
in the great forests of Europe. The forest reservations of 
the state of New York amount to about 800,000 acres, or 
1,200 square miles. Several states have forest commissions. 

States occasionally buy for public reservations historic sites, 
like the Rufus Putnam house at Rutland, Massachusetts, or 
Fort Washington on the island of New York, or Valley Forge 
in Pennsylvania. The state of New York has even been allowed 
to purchase the beautiful palisades on the New Jersey side of 
the Hudson. Several mountains in New England, especially 
Mount Wachusett and Mount Greylock, have been purchased 
for state reservations, and the system is likely to spread 



330 Landholding. [§ 151 

through all the states which have natural beauties. In Mas- 
sachusetts a state park board has taken large areas of wood- 
land and roadway in the neighborhood of Boston, and has 
assessed the cost on the cities which get an advantage. The 
most notable state park is at Niagara Falls, purchased at 
great expense by New York, and now maintained as one of 
the most superb places of resort in the world. The head 
waters of the Mississippi have been included by the state of 
Minnesota in Itasca Park. In California the Yosemite Val- 
ley and the Mariposa Big Trees are state reservations. The 
whole of the St. Lawrence River and islands within the bound- 
aries of New York may become a park under the control of 
the state. 

State reservations are simply a setting aside for public use 
of mountains, valleys, and other places of beauty which would 
either be fenced in by greedy private owners, or would be 
ruined by the cutting or defacing of the trees. At present a 
very little money will go a long way toward securing such points 
of beauty, especially tracts of woodland lying near great cities. 
The Middlesex Fells reservation, in sight of Boston, is a region 
about five miles long and three miles wide, with beautiful 
lakes and forests, and was bought for a few hundred thousand 
dollars because it had never been settled. 

As to forests, the argument is not only one of beauty but 
of profit. In the New England and Great Lake states, forests 
and mountains are a source of revenue because they attract 
thousands of summer residents. Moreover, the ruthless de- 
struction of forests is thought to afl'ect the flow of streams. 
The preservation of lumber supplies and of fuel is a duty 
which the present generation owes to the next one. A forest 
properly cared for may have about one fiftieth of its surface 
cut every year without injuring it, and that is the system used 
in the great European forests ; indeed, in Germany the owner 
of a private forest is not allowed to cut a tree without the 
sanction of the state inspector. 

The states are all holders of real estate for public buildings. 



§ i5i] State. 331 

Every state has a capitol, most of them small editions of the 
Capitol at Washington. Notable among buildings of a more 
distinctive type are the beautiful Connecticut state house at 
Hartford, the new Rhode Island state house at Providence, 
the state capitol at Albany (which cost $18,000,000), the new 
capitol of Minnesota at St. Paul, and the large building at 
Austin, Texas. A few of the states, among them New York, 
Virginia, North Carolina, and Kansas, have what every state 
ought to possess, — a governor's residence near the capitol. 

An instinctive dread of the over-influence of large cities has 
resulted in placing nearly every state capitol away from the 
state metropolis : the capitol of New York was in 1797 moved 
to Albany, the capitol of Pennsylvania to Harrisburg in 181 2 ; 
of the thirty-eight cities in the Union having a population of 
over 100,000, Boston, Providence, Indianapolis, St. Paul, and 
Columbus are the only capitals. In many of the states the 
capital has been fixed as near the geographic centre as 
possible, upon the theory that it is convenient to the peo- 
ple, although of course the lines of railway communication 
always lead most directly to the largest cities. One of the 
states in the Union, Connecticut, for many years had two 
capitals, Hartford and New Haven, but it has finally settled 
upon Hartford ; and in the small state of Rhode Island there 
are no less than four so-called "state houses," although Provi- 
dence has now become the only capital. 

The struggle over the seat of government goes down into 
the counties, especially in new Western communities ; for 
the county town is certain to have public buildings and is 
likely to attract population. Hence fierce contests at elections 
held to decide on the county seat : in one case in Kansas 
the residents of the defeated town forthwith put their houses 
on wheels and hauled them across the prairie to the success- 
ful site. 

It is very common to distribute the state buildings. The 
governor and the legislature must be at the seat of govern- 
ment because they act together; but the penitentiary, state 



332 Landholding. [§152 

lunatic asylums, state normal schools, state imiversity (which 
ought always to be either in the largest city or the capital 
city), are scattered throughout the state, upon the ground 
that it is not fair to give one place the benefit of these con- 
veniences. Gifts of sites for such buildings are often made 
by local governments or individuals. Millions of dollars have 
been spent on land and buildings for state institutions of every 
kind : for instance, the state of Missouri has 4 insane asylums, 
I state prison, 4 normal schools, i university, 3 institutions for 
the deaf, bhnd, and feeble-minded, 2 state reform schools, and 
many other buildings. 

152. National Real Estate. 

The greatest landowner in the whole country is the United 
States of America, through the general government at Wash- 
ington ; for it has title to about one third of the whole area 
of the United States in North America^ chiefly in the form of 
unsold public lands. The United States is also the largest 
owner of improved real estate, having about 2,000 separate 
pieces of property. 

Outside the district of Columbia, the United States has 
1 74 military posts, most of them only a few hundred acres in 
extent ; such are the Jefferson Barracks near St. Louis, Fort 
Snelling near St. Paul, and Governor's Island in New York 
Harbor. There are 16 arsenals, armories, and ordnance depots, 
the principal one at Rock Island. There are 9 navy yards at 
various points on the coast, — as League Island on the Dela- 
ware below Philadelphia, and Mare Island in the harbor of 
San Francisco. There are 1,250 lighthouses strung along the 
coast of the ocean and lakes, and along some of the rivers. 
There are about 400 public buildings used for post-ofifices, 
custom-houses, and for the federal courts. Federal property 
is always solidly built and kept in good repair. 

Much of the United States was originally wooded, and in 
the Rocky Mountains and the Sierra Nevadas there are still 
immense areas of uncut timber ; recently also large areas of 




SACRAMENTO 



CALIFORNIA 



STATE C/aPITOLS 



§ 153] National. 333 

public land have been set aside for national forest reserves, 
now amounting to more than 70,000 square miles of territory, 
an area greater than all the New England states together. 
Among the most famous of these reserves are the Arkansas 
Hot Springs in the Ozark Mountains ; the Yellowstone Park, 
with superb spouting geysers and beautiful canons ; the upper 
Yosemite reservation ; the General Grant and Sequoia national 
parks of Big Trees in California; all of which are kept up as 
national parks, policed under national authority. 

Most of these parks lie within the boundaries of states, but 
have never been turned over to their control. There is no 
difficulty in maintaining these reservations so long as the log- 
cutters find plenty of private land ; but as soon as lumber 
grows scarcer and dearer, great pressure is put on Congress to 
authorize the cutting of timber on government reservations. 

153. The National Capital. 

In the history of the world, the seat of government has 
usually been the metropolis of the country : Paris, London, 
Berlin, Vienna, are the largest cities in France, England, 
Germany, and Austro-Hungary. The colonial governments 
were also situated in the principal colonial towns : nobody 
dreamed of disputing the right of Charleston, Williamsburg, 
Philadelphia, New York, or Boston. The Continental Con- 
gress sat in Philadelphia, then the leading city of the English 
colonies ; but since on two occasions it was assailed by muti- 
nous troops, and the state authorities did not give it proper 
protection. Congress was convinced that the seat of govern- 
ment ought to be removed from the centres of population. 

The federal constitution gave Congress authority to select a 
site for the national capital (not to be more than ten miles 
square), and to exercise exclusive jurisdiction over such dis- 
trict. The capital would still have been fixed in or near 
Philadelphia had not the two Pennsylvania senators quarrelled ; 
and in 1 790, by a compromise, the Northern members con- 
sented that the capital be fixed on the Potomac, provided the 



334 Landholding. [§153 

state debts be assumed by the federal government. To 
President Washington Congress assigned the duty of selecting 
the precise site, and he chose a tract on both sides of the 
Potomac, including the village of Georgetown. A French en- 
gineer, Major L'Enfant, laid out the city ; and, remembering 
the barricades of Paris in the French Rebellion, he not only 
divided it into squares like Philadelphia, but added great 
sweeping diagonal avenues, through which he supposed artillery 
might sometime be played. Washington is the most beautiful 
city in America, a favorite place of residence for people who 
can live where they like. It is the best-paved city in the 
Union, has the most beautiful public squares, and one of the 
most convenient systems of traction cars. 

Except the churches and hotels and some private residences, 
almost all the notable buildings in Washington belong to the 
United States government. At one end of Pennsylvania Ave- 
nue is the superb Capitol building, the central part designed 
by the great architect Charles Bulfinch in 1818, and greatly 
enlarged about 1859; the central dome was an afterthought, 
but it is one of the most superb soaring structures ever raised 
by the hand of man. Near the Capitol is the Library of Con- 
gress, really a national library, erected at a cost of $7,000,000, 
and one of the world's beautiful palaces. One and a half 
miles from the Capitol northwestward is the White House, the 
official- residence of the president. 

The most majestic ornament of the city of Washington is 
the Washington Monument, an obelisk-like shaft of white 
stone, 555 feet high, and beautiful beyond description. Scat- 
tered through the city are numerous public buildings : the 
enormous Pension Office ; the big and unsuitable Treasury 
Department ; the great building of the State, War, and Navy 
Departments; the new city Post-Office building; the Patent 
Office ; the National Museum ; and the Smithsonian Institu- 
tion. A plan is now on foot for laying out a superb esplanade 
from the Capitol to the Washington Monument, to be embel- 
lished with new public ' buildings arranged with reference tq 



§ 154] National Capital. 335 

each other ; and in a few years Washington will become the 
most beautiful official city in the world. The United States 
has already expended more than ;^ 100,000,000 on public 
buildings within the District, of which nearly 1^40,000,000 
went into the Capitol. Although Washington is so near the 
coast that it was taken in 18 14, and was in some danger of 
capture from the sea in 1862, there is not the slightest likeli- 
hood of the removal of the capital westward. 

154. The Public Lands. 

Ever since the American Revolution the disposition of the 
public lands has been a serious political question. All of the 
present area of the United States, except the Columbia valley 
and the Pacific islands, has at some time been held by some 
European monarchy, and in most cases has been treated as 
royal private property for the time being. The English crown 
quickly transferred its right by wholesale grants to colonizing 
companies and royal favorites: for example, in 1632 the 
Baltimore family was made sole proprietor of Maryland, and 
the land was by it sold or given to private holders. At the 
time of the Revolution, most of the land east of the Alle- 
ghanies had passed out of the hands of the crown : a part of 
it was held by separate colonies ; a part was private property ; 
a part was subject to small annual quit-rents. 

When at the end of the Revolution the western boundary 
was fixed at the Mississippi River, seven of the states to the 
eastward laid claim to strips of territory in this previously 
ungranted region ; and a twenty-year dispute ended with the 
cession of a large part of its claims by every one of the seven 
claimant states. Before a single one of these cessions had 
been made, Congress, by a resolution of October 10, 1780, 
laid down the public-land policy of the following century, — 
that the lands " shall be disposed of for the common benefit 
of the United States." This vote was a pledge that the lands 
should not be held as a continuous pubhc domain, and that the 
proceeds of sales should be used to extinguish the public debt. 



336 Landholding. [§ ^54 

This pledge has been kept so far as possible, not only for 
the lands east of the Mississippi River, but for the successive 
additions of public territory. New areas of land, except what 
had already been granted to individuals, were added by acces- 
sions of territory, — Louisiana in 1803, Oregon from 1805 to 
1846, West Florida in 1810-14, East Florida in 181 9, New 
Mexico and Cahfornia in 1846-48, the Gadsden Purchase in 
1853, Alaska in 1867. Texas, when annexed in 1845, kept 
all its public lands; in the annexations of Hawaii (1898) and 
the Philippines and other Pacific isles (1898), most of the 
land is private property. 

Of the 3,500,000 square miles comprised within the con- 
tinental United States, 2,825,000 square miles have at one 
time or another been the property of the United States, and 
1,675,000 square miles are still undisposed of. This enor- 
mous area, nearly one half of the Union, lies almost entirely 
in the Western states and Alaska, and is made up of desert, 
mountain, and arid regions; very little land available for 
ordinary farming is still owned by the United States outside of 
Alaska. 

Under Jefferson's influence. Congress in 1785 adopted the 
intelligent and useful method of rectangular surveys, the prin- 
ciple of which is to lay out east and west lines a mile apart, 
and to cross them by north and south lines a mile apart ; the 
square mile, or 640 acres, is called a section, and is divided 
into quarter sections of 160 acres. 6 miles in each direction 
include a congressional township of 36 square miles. Such 
townships are numbered as shown in the illustrative diagram ; 
and in selling land the government deeds give title to, say, 
"the north-east quarter, section 22, township 5 south and 
range 13 east of the first principal meridian." All the 
surveys are recorded in official land offices ; and claims for 
the grant or purchase of lands must be entered on those 
reconls until entirely out of the hands of the government, 
when, like any other private holdings, they must be registered 
in the local county record offices. 



UTAH. 



TOWNSHIP No. 5 South RANGE No. 23 East of the Salt Lake MERIDIAN. 

GfFeEd DcCbBa A 



?M. C.ii„)M. C. 



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41.4640.3340, 5240. 88V^9-jl0.73*0.55'I0j9740.29'4"0, 3140. SaiO^-ljalOSe'lO 3740 3810 1040 3040.3740.35 '^3^40.2340.2040.12 40.01; 

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SEC.2, ijfciS SE0.1. M.C.^Pi"'-' 




RECTANGULAR SURVEY OF PUBLIC LANDS. 



§ 154] Public Lands. 337 

The three main objections to the rectangular system are 
as follows : — (i) The roads are laid out along the section 
lines, and hence commonly do not follow the valleys and 
streams, but go up hill and down dale. (2) The boundaries 
do not refer to natural objects, and the stakes are very easily 
displaced, a circumstance which leads to expensive litigation. 
(3) The government has never made a sufficient distinction 
between ordinary farming lands and timber, mineral, and 
grazing lands. Forested, stone, and coal lands are now listed 
to be sold for special high prices ; and mining claims are en- 
tered and recorded as a separate system. 

The rest of the former public land, about 1,170,000 square 
miles, or 748,000,000 acres, has been disposed of by the 
United States by one or the other of four methods, — sale, 
grants to individuals, grants to states for state purposes, and 
grants for internal improvements. 

(i) About one fourth of the land of the United States has 
been disposed of by direct sales. From 1785 to 1800 large 
quantities were sold to colonizing companies who came to the 
seat of government. Since the small purchaser found it 
almost impossible to get what he wanted, in 1800 a new 
system was adopted of selling lands on credit through land 
offices out on the frontier. This led to the buying of more 
land than people could pay for, and about 20,000,000 acres 
were taken back by the government. In 1820, therefore, a 
third system was adopted, — that of selling land for cash in 
any quantity to any comer, at a minimum price of ;^i.25 per 
acre. This led in the two years, 1835-36, to the sale of 
36,000,000 acres, chiefly to speculators, who disorganized the 
finances of the country and brought on a financial panic. 
From 1 84 1 to 1891 most land sales were made under the pre- 
emption system, by which any head of a family might take 
up one tract of farm land of 160 acres by living on it for six 
months and paying ^200. The available lands were so 
diminished that this privilege was withdrawn in 1891. The 
receipts for the sale of public land now foot up to about 



338 Landholding. [§ 154 

$3,000,000 a year, chiefly from lumber and mineral land, 
desert land, or coal land. 

Public lands valuable for timber or building stone, not 
being mineral in character nor fit for agriculture, may, if 
uninhabited and unimproved, be bought at $2.50 per acre in 
lots of not more than 160 acres by any one person or asso- 
ciation. The land must be for the exclusive use or benefit 
of the purchaser and not for speculation. All public lands 
valuable for minerals, coal, salt, or petroleum are reserved 
for sale. Any citizen, or alien who has declared his inten- 
tion of becoming a citizen, may prospect for minerals on the 
public domain and locate not more than 1,500 feet along a 
vein of ore and from 25 to 300 feet on either side of it on 
the surface. The end lines of his claim must be parallel ; but 
■ he has the right to follow the dip of the ledge to any depth 
between these lines, although this may take him beyond the 
vertical plane of his side line. To retain his claim the locater 
must spend at least ^ibo worth of labor upon it each year: 
if he fails to do so the property may be relocated by others. 
When he has spent ^500 worth of labor, he can obtain a patent 
from the government, if there is no adverse claim, by paying 
$5 per acre for the land located, and can purchase at the 
same price a mill site of not more than 5 acres. The patent 
gives him ownership and freedom from relocation. The 
process of entering and patenting a placer, saline, or petro- 
leum claim is the same as for a quartz claim, but no location 
by any association shall exceed 160 acres nor more than 20 
acres for each individual claimant. The patents for these 
lands cost ^2.50 per acre. Coal lands are sold to the extent 
of 160 acres to any individual and not more than 320 acres 
to an association, but if not less than 4 persons have expended 
$5,000 in improving the land they may enter 640 acres. If 
the land is more than 15 miles from a completed railroad the 
price is $10 per acre, otherwise it is $20 per acre. 

(2) Immediately after the Revolution began the practice of 
giving away lands to individuals. The Revolutionary troops 



§ 154] Public Lands. 339 

received about 10,000,000 acres; the soldiers of the Mexican 
War about 60,000,000 acres. After the Civil War there was 
no special military grant, because in 1862, by the Homestead 
Act, Congress had established the principle of giving away a 
quarter section of land to any head of a family, native or im- 
migrant, after he had lived five years upon it and had paid a 
fee of about ^40. About 200,000,000 acres have thus been 
given away, for the distinct purpose of stimulating the growth 
of Western states. In addition, by the Tree Claim Act, from 
1873 to 1 89 1 Congress gave 160, 80, or 40, acres of land to 
anybody who would agree to keep a certain number of trees 
growing on it for five years ; this system led to frauds, and 
after 9,000,000 acres of tree claims had been allowed, it was 
given up. The homestead system has of late been much 
abused by cattle companies, who advertise for people to 
homestead in order to sell out to them. 

(3) Of the original thirteen states, all except Rhode 
Island, New Jersey, Delaware, Maryland, and South Carolina 
had large tracts of wild land at the organization of the federal 
government ; and they sold those lands for their own pur- 
poses. As new states were admitted, each, beginning with 
Ohio in 1802, received from the government a gift of public 
land within its borders. For school lands was reserved one 
section in each township (a thirty-sixth of the public do- 
main) ; and, in states admitted since 1850, two sections in 
each township; the total is 70,000,000 acres. In 1862, 
land warrants for 10,000,000 acres, which might be located 
anywhere, were given to the states to found agricultural col- 
leges. The six new states admitted into the Union since 
1890 got 28,000,000 acres for various purpose's, and lands are 
still being transferred to the states from year to year. 

(4) By grants for internal improvements, first to the states 
and later to railroad corporations, over 140,000,000 acres have 
been given away. Many of the canals in states west of Penn- 
sylvania had government land grants, followed in 1850 by the 
first railroad land grant to the Illinois Central. Most of the 



340 Landholding. [§ 154 

great trunk lines radiating west from Chicago reserved such 
grants. In 1862 began the great land grants to the four main 
lines of Pacific railroads, — the Union and Central Pacific, 
the Northern Pacific, the Southern Pacific, and the Atlantic 
and Pacific. Great quantities came back to the government, 
because the projected roads were not built within the stipulated 
time ; but the net gifts are over 100,000,000 acres. 

By this consistent policy of the federal government to divest 
itself of its public lands as soon as possible, the principle of 
private ownership of land has been formally fixed ; even the 
lands given to the states and to railroads have in most cases 
been speedily sold to individuals or corporations. Within the 
limits of the present city of Chicago there were originally 9 
square miles of land reserved for school purposes, which, had 
it been retained and rented, would have splendidly supported 
the whole system of schools without a dollar of taxes. Large 
amounts of land are still held by the great railroads, although 
it is their policy to sell them, so as to build up traffic over 
their lines. 

The operations of the Land Office in the fiscal year ending 
June 30, 1 90 1, show the following data : — 

Area disposed of, 15,600,000 acres; of which 1,300,000 
acres were cash sales; 14,200,000 acres, miscellaneous entries 
and selections; and 100,000 acres, Indian lands. The cash 
receipts were $5,000,000, of which $3,600,000 was for land, 
$1,300,000 for fees and commissions. The expenses were 
$800,000. 

The money return to the United States is less than might 
be expected ; it foots up to $345,000,000 ; but the government 
has paid for various land cessions over $50,000,000, and for 
surveying and administering probably $200,000,000 more. It 
is unfortunate that the great value of the forests was not 
earlier reaHzed, so that the white pines of Michigan, Wisconsin, 
and Minnesota, and the splendid red-woods of the Pacific 
coast, many of them over 250 feet high, might have been 
saved for commercial foresting. Mineral lands, especially gold 



§ 154] Public Lands. 341 

and silver, are not subject to entry under the ordinary system 
if their valuable contents are known ; but many thousands of 
acres have been sold before their quality could be ascertained. 
A still more serious misfortune is that the government did not 
earlier realize that grazing lands cannot all be sold in tracts of 
160 acres, since they are worthless without water: the people 
who take up the sections along the rivers really control the 
country back, and keep without rent millions of acres of 
public land, because nobody else can profitably use it. The 
government did not begin early enough to recognize that some 
lands could be made valuable by irrigation. 

The process of distributing the available land is now almost 
completed : little desirable farming land remains in the hands 
of the government ; and the most valuable remaining timbered 
areas have now been alienated, or are held back as national for- 
ests. The United States retains desert, rock, and mountains ; 
but, except for its parks and reservations, within a few years 
the government will not own, outside of Alaska, any land that 
individuals will want to live on or to exploit. 



CHAPTER XIX. 

BOUNDARIES AND ANNEXATIONS. 

155. References. 

Bibliography: A. B. Hart, Manual (1908), §§ 65, 66, 115, 116, 167, 
171. Channing and Hart, Guide (1896), §§ 2i-2\d, 78, 92, 144, 150, 168, 
192-194, 199. See also references in ch. xviii above. 

Boundaries: J. B. Moore, Digest (Washington, 1906), I, §§ 125-162 ; 
H. Gannett, Boundaries of the U. S. aftd of the Several States (2d ed., 
U. S. Geological Survey, Bulletins, No. 171,1900); B. A. Hinsdale, 
Boimdi7igthe Original U. S. [Magazine of Western Hist., II, 403-423, 1885) ; 
F. J. Turner, Western State Ma/king {Am. Hist. Rev., I, 70-87, 251-269, 
1895, 1896) ; U. S. Twelfth Census, Bulletins, No. 74 (with map) ; A. B. 
Hart, Epoch Maps (rev. ed., 1899). Maps in American Nation, passim. 

Annexations : B. A. Hinsdale, How to Study and Teach History 
(1894); B. A. Hinsdale, Old Northivest (1888), ch. x; T. Roosevelt, 
Winning of the West (4 vols., 1889-1896), II, ch. xiii ; IV, ch. vi ; A. B. 
Hart, Contemporaries (1897-1901), III, §§ 111-I15, 143, 149; IV, §§ il, 
14, 46, 174, 185; Louisiana and West Fla., in H. Adams, U. S. (1889- 
1891), II, chs. ii-v ; V, 305-315 ; VI, 236, 237 ; E. Channing, Jeffersonian 
Systetn (Am. Nation, XII, 1906), chs. iv-vi; West Fla. and East Fla., in 
J. B. McMaster, [/. S. (1883-), III, 31-34, 370-375, 536-540; IV, 476- 
483; Oregon, in H. H. Bancroft, Northwest Coast (1884), II, chs. 
xv-xvii ; 'Texas in J. Schouler, H. S. (rev. ed., 1895-1899), IV, 303-307, 
449-451, 457-459, 470, 482-488; California, New Mexico, and Gadsden 
Purchase, in J. F. Rhodes, H. S. (1893-1907), I, 87, 92, 93; II, 7; G. P. 
Garrison, Westward Extension (Am. Nation, XVII, 1906), chs. viii, x, 
XV ; Alaska, in F. Bancroft, Willia?n H. Seward (2 vols., 1900), II, ch. 
xlii; Hawaii, Samoa, and the Philippines, in J. H. Latane, America as a 
World Power (Am. Nation, XXV, 1907), chs. iv, viii; J. M. Callahan, 
Am. Relations in the Pacific (1901), chs. viii-x. For Porto Rico and the 
Philippines, see references in ch. xx below. 

156. History of the National Area. 

The extension of the governmental area is a territorial 
function which falls exclusively upon the federal government. 
From the beginning the United States has been an expan- 

342 



§ 156] National Area. 343 

sionist nation, and its area has been increased from 828,000 
square miles in 1789 to 3,692,000 square miles in 1902. The 
area of the Union on July 4, 1776, was that of the thirteen 
colonies which were united in the Revolutionary War; but 
their boundaries were not quite the same as of those states 
at the present day ; part of the present state of Georgia was 
then in South Carolina, and Western New York had not yet 
come into the jurisdiction of New York ; Maine was a part 
of Massachusetts, West Virginia a part of Virginia ; the peo- 
ple of Vermont were about to throw off their allegiance to New 
York ; and in what are now East Kentucky and Tennessee 
there were settlements springing from Virginia and North 
Carolina. 

In the course of the Revolutionary War, the Six Nations in 
Western New York were crushed by continental troops, and 
George Rogers Clark conquered most of the country between 
the Ohio River and Lake Michigan. When the treaty of peace 
came to be made in 1782, the boundary agreed to by the 
English commissioners included not only the thirteen states, 
but Vermont, the whole of the Northwest Territory as far as 
the head of Lake Superior, and also the territory south of the 
Ohio River as far as the 31st parallel. Thus, partly as a re- 
sult of hard fighting and partly by skilful diplomacy, the 
United States more than doubled its area by the war. 

The next great territorial accession was Louisiana, which 
in 1803 was bought for about ^15,000,000 and included the 
whole western valley of the Mississippi and its tributaries, to 
their remotest heads in the Rocky Mountains. The bounda- 
ries of Louisiana on the south were ill-defined and hard to 
establish ; eventually under the cession we yielded all claims 
to Texas beyond the River Sabine. 

The next annexation was that of Oregon. The relations of 
the United States with that region began with the discovery 
of the mouth of a river, in 1792, by Captain Gray in the 
ship Columbia, and he named the river after his ship; but 
the act which many years later was seen to have settled the 



344 Boundaries and Annexations. [§ 156 

question was the overland expedition of Lewis and Clark, 
sent out by Jefferson, which reached the Columbia in 1805. 
Our claim to Oregon was for a time contested by Spain, 
Russia, and England; and was not settled till 1846, when 
the present northwestern boundary of the United States was 
agreed on. 

The next annexation was really that of West Florida, which 
from 1810 to 1814 was occupied in successive sections by 
United States troops under the belief that it was a part of 
Louisiana. Recent investigations have shown that the French 
did not intend to include it in the cession. Next came the 
annexation of East Florida, by the treaty of 18 19 with Spain; 
the United States paid ^5,000,000, and thus acquired the 
whole coast line from Maine to the Sabine River. 

Next came the annexation of Texas in 1845. We now 
know that a part of the present state of Texas was claimed 
by France, and that we were really entitled to take possession 
of it instead of West Florida; but in 1819 it was agreed that 
Texas, then a part of Mexico, should remain Spanish. Three 
years later the revolt of Mexico included Texas; in 1835 
Texas revolted and set up a separate government ; and in 
1845 the republic of Texas was incorporated into the United 
States. 

The next year war broke out with Mexico. In 1848 that 
country ceded California, and what was then called New 
Mexico, including the present state of Utah. The south- 
western boundary was found difficult to run, and in 1853 the 
so-called " Gadsden Purchase " gave an additional strip in what 
is now Arizona. In 1867, after the Civil War, the United 
States obtained from Russia what was then called Russian 
America, and is now known as Alaska. 

In 1867 to 1 87 1 treaties were negotiated for the cession of 
the Danish West Indies and San Domingo, but the Senate 
refused to approve them. Then for nearly thirty years there 
was a halt in annexation; but in 1898 the Hawaiian Islands 
were annexed, and in the same year Porto Rico, the Philippine 



§ 157] Processes of Annexation. 345 

Islands, and Guam were ceded by Spain as the result of the 
Spanish War. In 1899 the United States acquired sole title 
to the island of Tutuila. Three little Pacific islands — Mid- 
way, Baker, and Wake Islands — have also been officially 
claimed by the United States since 1898; in addition, a few 
guano islands off South America and in the Gulf of Mexico, 
are temporarily a part of the United States territory. 

157. Processes of Annexation. 

This territory has been annexed by five methods. 

(i) The original territory of the thirteen revolting states 
became theirs by the force of their own good right arms in 
the Revolutionary War : it was not a conquest, but a main- 
tenance of a previous occupation. 

(2) One large area and three small islands have come 
to the United States through the right of prime discovery 
of territory not previously held by civilized nations. The 
Columbia River was discovered in 1792; the first settlement, 
the trading post of Astoria, was established on the south side 
of the river in 181 1 ; the first permanent settlers went there 
about 1832. The island of Tutuila belongs to us as one of 
three nations which were the first to exercise sovereignty over 
the Samoan group ; Baker, Wake, and Midway are ours be- 
cause visited by American vessels and claimed by us before 
any other civilized power. 

(3) Several annexations have been brought about by peace- 
ful treaties of purchase: Louisiana in 1803, East Florida in 
1 81 9, the Gadsden Purchase in 1853, and Alaska in 1867. 
In three of these cases the government which owned territory 
was glad to transfer it ; in the other case. East Florida, Spain 
thought it better to part with it peacefully than to lose it by 
conquest. 

(4) Three annexations have been made by military con- 
quest : West Florida in 1810 to 1814; New Mexico and 
California in 1848; Porto Rico and the Philippines, with 
the island of Guam in 1898. In all three of these conquests 



34^ Boundaries and Annexations. [§ 158 

the government of the United States felt qualms, and in each 
case paid a douceur to the other party : by the treaty of 18 19, 
^5,000,000 was paid nominally for East Florida, but from the 
Spanish point of view also for West Florida; ^15,000,000 was 
paid to Mexico in 1848, and ^20,000,000 to Spain with refer- 
ence to the Philippines in 1898. 

(5) In two instances territory has been annexed by the 
voluntary incorporation of independent states: Texas in 1845 
and the Hawaiian Islands in 1898 were each annexed by a 
joint resolution, which is really nothing but a statute requiring 
a majority in both houses and the approval of the president. 
Texas was admitted as a state from the moment of annexa- 
tion ; the Hawaiian Islands were later created a territory. 

158. Exterior Land and Water Boundaries. 

The process of territorial growth has involved the United 
States in many serious boundary controversies. The original 
treaty of 1782 designated, on the northeast, a line from the 
sea round to the head waters of the Connecticut ; but the ne- 
gotiators had before them an erroneous map, and the bound- 
ary could never be located on the face of the country. Not 
until after long controversy was an agreement made, in 1842, 
to divide the disputed territory, and a sum of money was 
paid to the state of Maine for the extinction of part of its 
claims. Of late the claim has been put forth that there is no 
constitutional authority for ceding any part of the United 
States to any other power. Besides this precedent, and the 
transfer of an island in the Niagara River, the United States 
doubtless possesses under the treaty power the usual sovereign 
right of ceding territory. 

The boundary through the St. Lawrence and its upper 
tributaries required many tedious surveys : in the rivers, the 
deepest channel was commonly the dividing line ; in the 
Great Lakes, the line lies on the bottom of each lake about 
midway of its breadth. 

The western line of 1782 was also impossible to locate, for 



§ 158] Exterior Boundaries. 347 

it was to run west from the Lake of the Woods to the head of 
the Mississippi, no part of which reaches as far north as the 
Lake of the Woods, This difficulty was adjusted in 18 18 by 
a treaty with Great Britain, making the 49th parallel the divi- 
sion line as far as the Stony Mountains. 

The Oregon boundary was a subject of controversy from 
1792 to 1872, the term Oregon originally applying to the 
whole country between the Rocky Mountains and the Pacific, 
from California to Russian America. In 1819 Spain gave up 
any claim north of the 42d parallel; in 1824-5 Russia gave 
up any claim south of 54° 40' ; this left Great Britain and the 
United States face to face, and in 1846 they agreed to con- 
tinue the 49th parallel to the Pacific as a dividing line. A 
new controversy arose as to the water boundary out through 
the Straits of St. Juan de Fuca, and was settled by the arbitra- 
tion of the Emperor of Germany, in 187 1, in favor of the 
American contention. 

The southern boundary was for many years subject to dis- 
pute. The line of the 31st parallel set forth in the treaty of 
1782, though made without the consent of Spain, was in 1795 
acknowledged by that power. Then from 1803 to 1819 
raged the controversy over West Florida and Texas; in 1819 
we gave up any contention west of the Sabine River and 
south of the Red River. Exactly what was the southwestern 
boundary of Texas when annexed in 1845 '^^.s never been as- 
certained : Texas claimed the Rio Grande " from its mouth to 
its source " ; but this included New Mexico with the ancient 
Santa F€, which had never been a part of Texas. By the 
treaty of 1848 the Rio Grande was made the Mexican bound- 
ary up to a certain point, and thence an irregular line to the 
Pacific. The line was disputed and set aside by the Gadsden 
treaty of 1853. At present all the boundaries from Passama- 
quoddy Bay to Puget Sound, and from the Rio Grande River 
to the Pacific, have been surveyed and marked by stone monu- 
ments. Part of the boundary between Alaska and British 
Columbia is still in dispute. 



348 Boundaries and Annexations. [§ 159 

The eastern and western boundaries of the United States 
are the sea line. That does not mean the water's edge either 
at high or at low tide, but a line three miles out from the 
shore at low tide ; furthermore, waters like Long Island Sound, 
Delaware and Chesapeake Bays, and the estuary of the James 
River are within the boundary of the United States, though 
their mouths are more than six miles wide. The sea bound- 
ary is therefore a line following the sinuosities of the seacoast 
three miles out, but crossing from cape to cape where there is 
a great land-locked water. 

159. Territorial and State Boundaries. 

The internal boundaries between the states and territories 
have been created by one or the other of three agencies — 
royal grants, state agreements, and acts of Congress. 

(i) The boundaries of thirteen of the present states, from 
Maine to Georgia, are referable to grants made by the King 
of England in his capacity as feudal owner of the soil of all 
his kingdom — a right which could be practically exercised 
in the new world, with its wealth of soil unoccupied by 
Europeans. The royal grants were so vague and conflicting 
that many controversies arose in colonial times ; some of 
which were settled out of hand by royal orders, some by 
intercolonial agreements, and some by decisions of the Privy 
Council in formal suits on appeal. The kings did not know 
the geography of the country, and gave impossible boundaries, 
as that to Virginia in 1609 "up into the Land throughout 
from Sea to Sea, West and Northwest." Successive strips of 
territory were granted on different terms of gift, sale, or trans- 
fer to a proprietor or company ; and the only way to straighten 
them out was by consolidation : thus, Massachusetts absorbed 
Maine, Plymouth, and (at one time) New Hampshire. Differ- 
ent colonies contended for the same territory ; as New York, 
New Hampshire, and Massachusetts for Vermont. Massachu- 
setts, Connecticut, Virginia, and Carolina had grants to the 
Pacific Ocean, cutting across French and Spanish territory. 



§ 159] Internal Boundaries. 349 

Pennsylvania and Maryland overlapped. Dutch, Swedish, and 
French occupation complicated the boundaries. Half a dozen 
distinct little colonies were absorbed ; as Maine, Plymouth, 
New Haven, and West Jersey. Other colonies budded, as 
Delaware from Pennsylvania, and South Carolina from Caro- 
lina. At the time of the Revolution, however, the lateral 
boundaries, running inward from the ocean, were fixed almost 
as at present. 

(2) By intercolonial or interstate agreement other impor- 
tant hnes were adjusted before 1787. The dividing line 
between Virginia and North Carolina was run almost to the 
Mississippi River in 1779; Mason and Dixon's line between 
Pennsylvania and Maryland was run in 1763-67. In 1782 
by a congressional committee of arbitration the Wyoming 
Valley was assigned to Pennsylvania and not to Connecticut. 
South Carolina made a small cession to Georgia in 1787. New 
York and Massachusetts came to an understanding in 1786 
by which Western New York was given up by Massachusetts ; 
New York also practically agreed to the independence of Ver- 
mont, which was not formally acknowledged until the state was 
admitted to the Union in 1791. Texas came into the Union 
on its own statement of its boundaries ; a statement denied by 
Mexico, and one of the causes of the Mexican War. There 
have been a few transfers of small areas from one state to 
another, particularly of " Boston Corner," a region separated 
by rugged mountains from the rest of Massachusetts, which 
therefore became a resort for desperadoes until it was trans- 
ferred to the neighboring state of New York in 1853. There 
is only one case of the subdivision of a state without its con- 
sent : West Virginia was set off from Virginia in 1862, and 
even here there was a nominal consent given by a legislature 
representing a fraction of the Old Dominion. 

(3) The boundaries of thirty states have been defined by 
the acts of Congress admitting them to the Union. As parts 
of the adjustment of the state land claims from 1778 to 1802, 
Kentucky and Tennessee were admitted into the Union in 



350 Boundaries and Annexations. [§ 159 

1792 and 1796. In 1802 began the process of subdivid- 
ing the Western country into new states. When Ohio was 
admitted as a state in 1802, it was given an area of nearly 
50,000 miles, that is, about the size of Pennsylvania ; and 
this was the model for all the states east of the Mississippi 
River, no one of which has an area of more than 70,000 
square miles. Texas, with 266,000 square miles, came in as 
a single state, and so remains. California under exceptional 
circumstances got an area of 160,000 square miles. The 
states west of the Missouri River, all admitted since i860, 
were cut on a larger scale, — Colorado, Nevada, and Montana 
each having over 100,000 square miles. The reason is that 
so much of the area of those states is taken up by mountains 
that they never can have the concentration of population of 
the eastern communities. Nevada was admitted prematurely ; 
it never had more than 62,000 inhabitants and has since 
declined to 42,000, who send two senators and a represent- 
ative — it is the " pocket borough " of the Union. 

A state boundary once adjusted by act of Congress is not 
often altered, although there have been a few cases : the 
boundary of California has been a little changed from the 
watershed of the Sierra Nevadas to a geometrical straight 
line ; the northwest corner of Missouri was added seventeen 
years after the state was admitted. The boundaries of the 
territories have been changed from time to time, the principle 
being to create a large territory and then to subdivide it as 
population increased or as states were set off. Thus the 
Northwest Territory of 1800 was much smaller than the North- 
west Territory of 1787 ; and Nebraska Territory for a few years 
took in everything north of Kansas, west of the Missouri, and 
east of the Rocky Mountains. 

The boundaries of our island possessions are simple, — 
the three-mile line out to sea round the islands ; after the 
Philippines were ceded it was found that two of the small 
islands lay outside the boundary of the treaty, and they were 
added by a subsequent purchase. With the exception of a 



§ 159] Internal Boundaries. 351 

few agreements between states for exchange of territory or 
the running of disputed lines, Congress has defined the bounda- 
ries of all existing political subdivisions west of the Alleghany 
Mountains. Occasionally mistakes have been made in sur- 
veys : for instance, when Michigan was ready to come in as a 
state in 1S36, it was found to include a strip of territory till 
then held by Ohio ; and the dispute nearly caused a civil war. 
Congress adjusted the matter by giving to Michigan the 
so-called " northern peninsula." 



CHAPTER XX. 

TERRITORIES AND COLONIES. 

160. References. 

Bibliography: A. P. C. Griffin, List of Books on Colonization (2d ed., 
1900); Channing and Hart, Gziide (1896), §§ 150, 161, 168, 177, 185, 196, 
197, 199; B. A. Hinsdale, Old Northwest (1888), 429-432; A. B. Hart, 
Manual (1908), §§ 29, 30, 43, 44, 85, 86, 115, 116, 163, 168, 173, 178, 218, 
219, 294; E. McClain, Constitutional Law {1905), § 184; R. C. Ringwalt, 
Briefs on Public Questions (1906), No. 10. 

Territories in General: J. A. Woodburn, Am. Repitbltc (1904), 
ch. viii; W. W. Willoughby, Constitutional System (1904), chs. xi, xii; 
W. F. Willoughby, Territories and Dependencies (1905), ch. i; R. L. 
Ashley, Am. Federal State (1902), ch. xxviii ; A. B. Hart, National Ldeals 
(Am. Nation, XXVI, 1907), ch. ii; J. B. Moore, Digest (1906), I, §§ 100- 
124; B. A. Hinsdale, Atn. Government (rev. ed., 1895), §§ 409-412, ch. 
xli; A. B. Hart, Foundations of Am. Foreign Policy (1901), chs. v, vi; 
F. H. Giddings, Democracy and Empire (1900), chs. i, xvi, xviii; E. C. 
Mason, Veto Power (1890), §§ 45-51- 

Government of Territories : E. McClain, Constitutional Law 
(1905), §§ 185, 186; W. W. Willoughby, Constitutional System (1904), 
chs. xiii, xiv ; W. F. Willoughby, Territories and Dependencies (1905), 
chs. ii,iii; J- Bryce, Am. Commottwealtk (ed. 1901), I, ch. xlvii; T. Roose- 
velt, Winning of the West (4 vols., 1889-1896), III, ch. vi ; M. Farrand, 
Legislation for Organized Territories (1896) ; T. M. Cooley, Constitutional 
Law (3d ed., 1898), 37, 38, 182, 186; R. P. Hunt, Legal Status of California, 
i8i6-i84.g (Am. Acad. Pol. Sci., Annals, XII, 387-408, 1898) ; J. Lowndes, 
Law of Annexed Territory (Pol. Sci. Quar., XI, 672-693, 1896). — Sources : 
A. B. Hart, Contemporaries (1897-1901), III, §§ 46, 114, 135, 136; IV, 
§§ 17,34.42, 43, 186; Am. Hist. Leaflets, Nos. 2, 17, 22, 32; M. Hill, 
Liberty Doctiments (1901), ch. xvi. 

Dependencies: Bibliography in A. B. Hart, Manual (1908), §§ 85, 
86, 115, 116, 153, 154, 163, 178, 194, 218, 219; W. W. Willoughby, Con- 
stitutional System (1904), ch. xvii ; W. F. Willoughby, Territories and 
Dependencies (1905), chs. iv-ix; A. Shaw, Political Problems (1907), ch. 
ix; W. F. Johnson, Century of Expansion (1903), chs. vii-ix; J. H. 
Latane, America as a World Power (Am. Nation, XXV, 1907), ch. viii ; 
Am. Colonial Policy and Administration (Am. Acad. Pol. Sci., Annals, 



§ i6i] Jurisdiction and Ownership. 353 

XXX, I-134, 1907); A. C. McLaughlin, Confederation and Constitution 
[Am. Nation, X, 1905), ch. vii ; P. S. Reinsch, Colonial Government 
(1902), part vii ; D. S. Jordan, Imperial Democracy (1899), Nos. 3, 4; 
A. L. Lowell, Colonial Expansion [Atlantic Monthly, LXXXIII, 145-154, 
1899) ; A. L. Lowell, Status of Our New Fossessio?zs (Harvard Law Rev., 
XIII, 155-176, 1899); J. W. Burgess, Governing Extra-Continental Ter- 
ritory, Cotistitutioti and Newly Acquired Territory [Pol. Sci. Quar., XIV, 
1-18; XV, 381-398, 1899, 1900); E. Freund, Control of Dependencies 
through Protectorates [Ibid.^ XIV, 19-38, 1899); C. F. Randolph, Law 
and Policy of Annexation (1901); C. C. Langdell and S. E. Baldwin, in 
Harvard Law Rev., XII, 365-416 {1899); Foreign Policy of the United 
States, Am. Acad. Pol. Sci., Supplement (1899). — Sources: A. B. Hart, 
Contemporaries {\i(^-]-i^Oi), 111, %% 113,114; IV, §§ 186-191 ; M. Hill, 
Liberty Documents (1901), ch. xxiv; A. H. Howe, Insular Cases {House 
Documents, 56 Cong., 2 sess. 1901, No. 509) ; the Insular Cases, in re- 
ports of the decisions of the Supreme Court for 1901 [U. S. Reports, 182, 
183). 

161. Jurisdiction Contrasted writh Ownership. 

Ownership of land by individuals, corporations, municipali- 
ties, states, or the federal government implies the right to use 
it for crops, for taking minerals, for the site of buildings, in 
short for any purpose which does not interfere with the rights 
of other people. The main peculiarities of the ownership of 
land by governments are (i) that the holding rarely returns 
to private ownership, and (2) that government property pays 
no taxes. The municipalities pay none, because they are 
parts of the states ; the states, because it would simply be 
appropriating money in order to pay it back into the treasury ; 
the national government does not tax state or municipal prop- 
erty, and the states do not tax national property, because the 
right to tax involves the right to tax heavily if taxation be 
allowed at all, and either power might thus extinguish the 
authority of the other. In other incidents, public and private 
ownership are much the same : the states and the nation may 
buy and sell their real property, and may take and give title ; 
both the private and the public owner may warn off un- 
authorized people from entering their land, and may sue the 
trespasser who commits damage. The private owner of land is 
in all cases subject to the higher authority of the government. 

23 



354 Territories and Colonies. [§ i6i 

Private or corporate land, mines, or quarries may be com- 
pelled to receive government inspectors ; the owner and his 
servants and tenants are always subject to the authority of 
governments to make, to execute, and judicially to apply laws 
over all property and persons within their boundaries. To 
this authority is usually applied the term "jurisdiction." For 
instance, the United States owns millions of acres of land in 
the far Northwestern states, but the states have prime jurisdic- 
tion over crimes committed upon those lands, over contracts 
made within them and relating to them, and over the personal 
relations of people living on them ; on the other hand, in the 
territories of Oklahoma, New Mexico, and Arizona, hundreds 
of thousands of acres are owned by private individuals, but 
the authority to make laws for the transfer of property, for 
roads, and the like is not primarily in the representatives of 
those people, but in Congress. 

There is a saying that " an Englishman's house is his castle," 
which means no more than that in England no person has a 
right to enter on the land of another in order to serve summons 
in civil cases. That principle does not prevail in the United 
States : no man may lawfully refuse to admit officers of the 
law, armed with a legal warrant, in search of persons charged 
with crimes or of evidence of the violation of law, or under 
due legal authority seeking to serve writs, subpoenas, and 
notices of suits. In practice, city policemen habitually enter, 
without warrants, all kinds of places where they suspect wrong- 
doing : for example, in New York City in 1902 gambling 
houses were repeatedly raided by the police. 

The federal system involves a double jurisdiction, and some- 
times a triple jurisdiction. For instance, federal laws against 
robbing the mail extend all over the Union, in all states and 
territories ; but separate state and territorial laws against rob- 
bing banks also apply. A United States statute on interstate 
commerce, a state law regulating insurance on freight in 
transit, and a municipal ordinance against the whistling of 
locomotives within city limits, may all apply to the same train 



§162] District of Columbia. 355 

on the same piece of track. The line between national juris- 
diction and state jurisdiction does not coincide with the 
state and territorial boundaries, and is hard to define exactly. 
On some subjects there is concurrent jurisdiction : for in- 
stance, the United States lays a liquor license on the sale of 
liquors in every state, and some states lay another tax upon 
the sale of the same liquor. To distinguish between the two 
ranges of jurisdiction is the task finally of the United States 
Supreme Court. There are, however, several kinds of terri- 
torial area in which the jurisdiction rests solely in the federal 
government, or in such temporary local governments as it may 
create. 

162. District of Columbia. 

First of these special jurisdictions in public attention is the 
District of Columbia, which has been described in a preceding 
section as the seat of national government and the centre of 
national administration. In 1 790, by their acceptation of the 
act of Congress on the seat of government, the states of Mary- 
land and Virginia duly ceded all claim to jurisdiction over the 
District. Meanwhile for ten years the temporary seat of 
government was Philadelphia; but early in 1800 Congress, 
the President, and the Supreme Court took up their abode in 
the new city of Washington. Difficulties arose from the fact 
that the District had been partly Maryland territory and 
partly Virginia territory; and in 1846, at the request of 
Virginia, the southern part was receded, so that the present 
District of Columbia is an area containing about 70 square 
miles, wholly on the north side of the Potomac River. Its 
population is 279,000 ; the assessed valuation of private prop- 
erty about ^198,000,000, and that of public property about 
1234,000,000. 

Under the constitutional power to legislate for the District 
of Columbia " in all cases whatsoever," Congress in 1800 en- 
acted that the then existing Maryland laws should apply to the 
part of the District north of the Potomac, and the Virginia laws 



356 



Territories and Colonies. [§162 



to the part south of the Potomac. For local purposes, the 
federal government has at different times set up three forms of 
government within the District : (i) in 1802 the city govern- 
ments of Washington, Georgetown, and Alexandria, ^ach with 
a mayor and' two councils; (2) in 187 1 a territorial govern- 
ment, with a governor and an elective house of delegates ; 
(3) this government got heavily into debt, and in 1878 the 
District was turned over to three commissioners appointed 
by the president, with power to make local ordinances. The 
people have now no direct voice whatever in their local gov- 
ernment : the only legislative body is the two houses of Con- 
gress. In addition Congress has provided a special system of 
courts for the District, with a supreme court, which is of 
special importance because it often has occasion to try cases 
which involve the powers of federal officials acting within the 
District. Since a large part of the real estate in the District 
is owned and occupied by the government, the United States 
pays one half the cost of keeping up the District government, 
and the rest is assessed upon the private tax-payers. The 
committees on the District of Columbia in the Senate and 
House, especially in the Senate, have large influence over this 
government, which costs about ^7,000,000 a year. 

Congress has, first and last, passed many special statutes for 
the District of Columbia, and most general laws (for instance, 
on bankruptcy, copyright, patents, the income tax) have been 
considered to apply to the District as well as to the states. 
In the Insular decisions of 1901, the Supreme Court seems 
to express a doubt whether a general law applies unless the 
District is particularly stated to be included. 

The most serious question of government that ever arose 
in the District of Columbia was slavery. From about 1820 
petitions for the abolition of slavery were introduced at fre- 
quent intervals; in 1850 an act was passed regulating the 
slave trade in the District; and in 1862 another statute set 
the slaves free, with a compensation of about $1,000,000 to 
the owners. 



MAP OF THE 

DISTRICT OF COLUMBIA 

Ht»«n PubUo open »pao«« or P«rt» 
Xellow OroumU to whloU tUo vmbU>. I\u aooojt 
but which noro not nrliu»rUjr Intondod 
u |v<trks. 

BuIMU\gs own«>l bj gOTormuc&t 
Soalo of Feut 
I'Vl .s«> 4t HX> iXjiKl 




"gmaiis. Green <Sr Co., Neto York <£• London, 



DISTEICT OF COLUMBIA. 



§ 163] Forts and Sites. 357 

163. National Forts and Sites. 

The same clause of the constitution which provides for the 
District of Columbia also authorizes " like authority over all 
Places purchased by the Consent of the Legislature of the 
State in which the same shall be, for the Erection of Forts, 
Magazines, Arsenals, Dock-yards, and other needful Build- 
ings." Under this provision, the United States has acquired 
many sites for lighthouses, military posts, navy yards, arsenals, 
post-offices, custom-houses, and many other public buildings. 
A formal cession of jurisdiction is obtained from the state 
legislature. Such cessions are usually very readily granted, 
sometimes outright, more commonly with a reservation that 
the land shall be used only for public purposes, and shall 
revert to the state jurisdiction if the United States ceases to 
own it or to use it for the purpose for which it is ceded ; and 
with other reservations as to jurisdiction. 

In 1860-61 was raised the important question whether a 
state could reoccupy such grants without the consent of the 
United States. All the government reservations within the 
limits of the eleven seceding states, except three forts, — 
Pickens, Key West, and the Dry Tortugas, — were seized by 
the states in 1861 ; and the war technically began with the 
forcible capture of Fort Sumter by the state of South Carolina. 
Since the Civil War no attempt has been made to repeat such 
acts, and the principle is commonly accepted that by state 
cession such little tracts cease to be parts of the states, are 
not really within their boundaries, and are not subject to 
state taxation or to state laws unless there is a reservation to 
that effect. Crimes committed in them may be examined 
and punished by United States courts, although in such cases 
the courts follow the procedure of the local courts. 

The question of criminal jurisdiction over territory thus 
ceded to the United States is somewhat perplexing, because 
most of such cessions include the restrictions that the state 
shall have concurrent jurisdiction, and that state processes run ; 



358 



Territories and Colonies. [§ 164 



and Congress has enacted that even without such a reserva- 
tion state processes may be served. This means that a person 
charged with committing a crime within a state, who takes 
refuge in federal jurisdiction, may be followed and arrested by 
state authorities ; and that suits against residents of such 
territory may be entered in state courts. 

Certain cases from their nature go to the federal courts, 
whether they occur within or without the special federal juris- 
diction ; such are maritime cases, seizures under United States 
laws, and offences against federal laws, — as, for instance, 
discriminating in interstate commerce or robbing the mails. 
Since 1841 Congress has by law prohibited the acquirement 
or the occupation of any land over which the jurisdiction of the 
states has not been extinguished. Where that precaution has 
not been previously taken, crimes committed in public build- 
ings may still be tried by the state courts ; otherwise. Con- 
gress has power to provide for exclusive jurisdiction in such 
places, without reference to state laws or to state courts ; but 
in practice it allows concurrent jurisdiction for crimes not 
directed against federal authority. 

The ordinary citizen is not aware of these distinctions : if 
he is robbed in a custom-house and the thief is caught, he 
appears as a witness without concerning himself whether it is 
a federal or a state court, and without noticing that in some 
cases the federal courts apply the law of the state. The real 
significance of the whole system is that it makes the federal 
government, in all its special jurisdictions, independent of the 
efficiency of state governments. 

164. Indian Reservations. 

The next form of special jurisdiction is Indian reservations. 
Originally the only owners of the soil were the Indian tribes : 
the English settlers from the first admitted that they could 
obtain a right to the lands only by the consent of the Indians. 
As settlements increased, especially after the Revolution, the 
new ground was taken that the Indians had only a right of 



§ 164] Indian Reservations. 359 

" occupancy " ; and since the federal constitution went into 
force in 1789, nobody but the United States has had any 
right to deal with them. The Indian tribes cannot transfer 
lands either to individuals or to the state governments ; yet 
the only constitutional authority for national care of the In- 
dians is the clause that Congress shall have authority to regu- 
late commerce " with the Indian tribes." The real basis of 
the whole Indian system is the precedent of government con- 
trol in colonial and Revolutionary times. 

Another principle on which the United States insists is that 
Indian lands do not belong to individual Indians, but to the 
tribes as a whole ; hence the ordinary method of securing In- 
dian lands has been by agreement between a tribe and the 
federal government. Such agreements were for a century 
called " treaties," and had to be duly ratified by the Senate. 
Since 187 1, however, no "treaties" have been negotiated ; in- 
stead, " contracts " or agreements have been made by the 
president alone, or by authority of Congress. 

The basis of our Indian policy is to be found in the two 
principles that the land is tribal, and that it may be trans- 
ferred only to the federal government. Before the Revolu- 
tion, the white people possessed nearly all the belt of land 
between the Atlantic coast and the Appalachian range. After 
the Revolution, for half a century a system prevailed of draw- 
ing boundary-lines nearly north and south between the whites 
and Indians, the whites not to pass to the west, the Indians 
not to pass to the east. About 1830, the white settlements 
had so increased that they penetrated far into the Indian 
country 3 and President Jackson adopted the new policy of 
confining the Indians within reservations surrounded by ring 
boundaries, outside of which white people might settle, but 
within which they could come only as visitors. He also 
moved the tribes from Georgia and Alabama beyond the 
Mississippi River, where their descendants now live in the 
Indian Territory ; and many of the tribes from the North-] 
western states were moved into similar reservations. 



360 Territories and Colonies. [§ 164 

So long as reservations were within a territory, it was simply 
a matter of convenience : one part was governed by a terri- 
torial legislature, another part, — the Indian reservation, — 
solely by Congress. When states containing Indian reserva- 
tions were admitted, those reservations remained political 
islands, not included within the jurisdiction of the states : for 
instance, the Ponca reservation in Nebraska, the Rosebud 
Sioux reservation in North Dakota, and the Modoc reserva- 
tion in Oregon are not legal parts of those states. The exist- 
ence of such reservations in Georgia late in the twenties led 
to a violent protest from that state, and finally to the forcible 
incorporation of parts of the former reservations within the 
state's county system. 

At present the federal government maintains 140 such res- 
ervations scattered throughout the West with a total area of 
about 76,000,000 acres, or 119,000 square miles, and an 
Indian population of 130,000. In the Indian Territory so 
called, there are governments with legislatures for separate 
tribes ; but it has no delegate in Congress, and is simply a 
local form of government permitted by Congress. In other 
reservations the only organized government is the tribal : the 
chiefs may punish petty crimes and decide local matters ; but 
the real government is the Indian agent, who is practically 
governor, judge, and marshal, often inflicting mild punish- 
ments. For many years there were no courts to try offences 
committed by Indians against Indians, or by Indians against 
whites; but in 1885 the jurisdiction of the federal courts 
sitting in some Western districts was extended over the neigh- 
boring Indian reservations. 

The reservation system is now breaking down. The reserva- 
tions from time to time diminish in size, because they contain 
good land much coveted by white settlers, and capable of 
maintaining from five to a hundred times as many whites as 
Indians. Some reservations have boundaries established by 
treaty, and can be diminished only by consent of the tribe, 
which has usually been obtained by paying a sum of money 




-MI _^ 113° lO'J 

(^opiirigiu, JUu;s, by l^onymans, areeu ]Sew York <£• Lonao 



IXDIAX RESERVATIONS. 

\_From the Map compiled by the Commissioner of Indian Affairs, mi.] 



§165] Status of Indians. 361 

for the cession, sometimes millions of dollars. Other res- 
ervations are established simply by an order of the president, 
and may be modified by him without ceremony. In general, 
the Western people do not like to have reservations in 
their neighborhood, and constant pressure is put on the 
government to diminish or abolish them. About 1880 efforts 
were made to move the Ponca tribes from their reserva- 
tions in Nebraska into other states, but they pined for the 
homes of their birth, and went back to the lands from which 
they had been taken ; and Congress finally restored their res- 
ervation. 

165. Status of Indians. 

Under act of Congress, the control of the Indians is vested 
in a commissioner of Indian affairs, appointed by the president 
and subordinate to the secretary of the interior. The execu- 
tive officers of the Indian Bureau are the Indian agents, who 
until 1849 were also military officers; since that time they 
have usually been civilians. Each agent has a force of clerks, 
and often there is an agency doctor and farmer provided by 
the government ; there are also schools at the agency and 
scattered through the reservation. The sale of liquor on res- 
ervations, or to the reservation Indians, is prohibited ; but it 
is practically impossible to prevent such sale in the neighbor- 
hood of reservations, as it is to enforce the regulation that 
white people shall not go on the reservation and take up lands 
there. President Grant instituted a body of officials called 
the Board of Indian Commissioners, which goes about among 
the reservations and examines and reports, but has no power of 
control. The Indians can also make representations through 
their agents, and sometimes send delegates to Washington to 
urge their interests. 

By act of Congress of February 8, 1887, an Indian who has 
formally left his tribe and settled down like other people be- 
comes thereby a citizen of the state and of the United States, 
entitled to the same rights and privileges as other men ; but 



362 Territories and Colonies. [§ 165 

the Indians who remain with the tribes on the reservations 
are not subject to state laws, and have not the privileges of 
citizens. 

From the beginning of the Revolution to the present day, 
the federal government has hoped and attempted to bring 
the Indians up to such a scale of civilization that they might 
be relieved of this anomalous status. During the last twenty 
years, it has made special efforts to get the Indians to divide 
up the reservations into farms held in severalty, — that is, 
each family to have a title to a particular tract, with the pro- 
vision that they shall not transfer it within twenty-five years. 
About 108,000 Indians have thus come out of the reservation 
status; but about 130,000 remain on the reservations, practi- 
cally as wards of the nation, as persons not sufiiciently mature 
to protect their own rights. Their property, often very large, 
is held and administered for them ; in most of the agencies 
they receive rations, practically distributed by the government ; 
and they have government schools. For these purposes, 
Congress appropriates about ^7,000,000 annually. 

An exceptional status is found in the Indian Territory, in- 
habited by the so-called " five civilized tribes," the Chero- 
kees, Creeks, Choctaws, Chickasaws, and Seminoles, 85,000 in 
number. Many of them are well-to-do, have good houses, 
and maintain tolerable schools. They are very strenuous 
against holding land in severalty, because their tribal lands 
amount to about 20,000,000 acres, or about 250 acres for 
every man, woman, and child. Much is tilled as farm land ; 
other large areas are valuable for grazing ; and considerable 
tracts are underlaid by coal and other minerals. Notwith- 
standing the principle that the white people are not to live on 
Indian reservations, about 200,000 whites live in the Territory ; 
although they cannot legally acquire title to a single acre of 
land, considerable towns have grown up in the heart of the 
Indian country by so-called ''leases," frequently not author- 
ized by the government. In addition, there are large trust 
funds, the proceeds of previous land sales, held in Washington 



§165] Status of Indians. 363 

for the benefit of the Indians. This state of things cannot 
last much longer : it is probable that these Indians will soon 
be compelled to accept small areas of land in severalty, and 
that the rest of their land will be distributed among the white 
people. The property of these Indian tribes is so large that 
white people who have married Indians have sometimes sought 
to get themselves enrolled as members of the tribe and sharers 
in the common benefits. 

It will thus be seen that there are three very distinct classes 
of Indians: (i) Those who have left their tribes and settled 
down. These include some of the remnants of the colonial 
coast tribes, as the Marshpee Indians on Cape Cod, the Gay 
Head Indians on Martha's Vineyard, remnants of the Iroquois 
in New York, and a few Seminoles in Florida ; but the mass 
of citizen-Indians are those who recently settled in severalty, 
almost all of them on farms. (2) The tribal Indians on the 
reservations, which were not large enough to support the In- 
dians by hunting, and are diminishing in area. Unless these 
Indians can make a living by farming, which is not com- 
mon, they must be fed by the government or they will starve. 
(3) The civilized tribes in the Indian Territory, and also the 
Navajos, Maquis, Zunis, and other Indians in New Mexico and 
Arizona, who are intelligent and capable of taking care of 
themselves, and who have valuable tribal lands and other 
property. Some of them by the treaty of 1848 with Mexico 
are citizens. 

The purpose of the government is to bring all the Indians 
to a self-supporting citizenship basis, but it is plain that the 
weaker ones will have to be supported by the government for 
a long time to come. What the Indians need is first of all a 
code of Indian laws administered by special courts. Then, 
too, many of the Indians who cannot become successful farm- 
ers can be useful as cowboys and ranchmen, and the govern- 
ment ought to encourage their raising stock. Twenty years 
ago, some progress was made in enrolling the Indians as 
soldiers ; but the system broke down, not because they were 



3^4 



Territories and Colonies. 



[§ 1 66 



not brave, efficient, and disciplined, but because they would 
not consent to remain indefinitely away from their families. 
The following table does not include Alaska : — ' 





Tribal 
Indians. 


Other (taxed) 
Indians. 


Congressional 
Appropriation. 


i860 
1870 
1880 
1890 
1900 


295,400 
287,981 
240,136 
189,447 
129,982 


44,021 

66,407 

58,806 

107,706 


$1,683,419 
4,927,980 
4,713.179 
5,455413 
7,108,406 



166. Organized Territories and Dependencies. 

The next form of exclusive jurisdiction is the so-called " ter- 
ritories." The only clause of the constitution on the subject 
is that Congress shall have power to " make all needful Rules 
and Regulations respecting the Territory or other Property 
belonging to the United States." Upon its face, this would 
seem to refer to ownership rather than to jurisdiction ; but in 
1789 Congress had already passed two ordinances for the 
government of the Western country, and presumably was ex- 
pected to administer the inchoate states. The promise of 
statehood expressed in the votes of Congress in 1780, 1784, 
and 1787 does not reappear in the constitution. 

The first national legislation for the territories was the 
Ordinance of April 23, 1784, which promised that Congress 
would establish temporary governments, and later state gov- 
ernments, provided the communities should be republican and 
should remain subject to the Articles of Confederation. The 
Northwest Ordinance of 1787 was still more detailed. It pro- 
vided for two successive forms of territorial government : — 
(i) A governor and three judges were to be the legislature. 
(2) When there were 5,000 free men in the territory, they 
were authorized to set up a legislature, the upper house to be 
appointed by Congress, the lower house to be elective. This 



§ i66] Territories. 365 

form of government also contained the famous " Compact," 
which set forth that in the Northwestern Territory there should 
be freedom of religious worship and sentiment, habeas corpus, 
trial by jury, fair judicial process, and good faith toward the 
Indians ; schools and means of education should thereafter 
be encouraged ; and slavery should not be further introduced. 

This Northwest Ordinance was practically the foundation 
of the later territorial governments ; it was confirmed by the 
new Congress in 1789, and substantially reenacted for the 
territory south of the Ohio River in 1790. Most of the terri- 
tories have gone through two stages of government, — first by 
an appointive council, and later by an elective body ; in all 
cases statutes passed by the territorial legislature have been 
subject to the governor's veto, absolute or suspensive ; and 
Congress always could, and sometimes did, annul territorial 
laws. 

The only regions within the continental block of the United 
States which have never been territories of the United States 
are the thirteen original states, including Vermont, Kentucky, 
and West Virginia ; and Texas and California, which were 
admitted without any preliminary territorial government. At 
present there are but three communities having governments of 
the ordinary territorial type : New Mexico, Arizona, and the 
Hawaiian Islands. 

The governors of the territories, appointed for terms of four 
years, have frequently been sent out from the Eastern states ; 
of late years it has become more common to appoint residents 
of the territories. There is also in each territory a secretary, 
a treasurer, an auditor, and often a superintendent of public 
instruction, all appointed by the president and confirmed by 
the Senate. In addition there is a body of territorial judges, 
appointed by the president for four years ; strictly speaking, 
these are not "judges of the United States," but are appointed 
as a part of the general system for the care of territorial 
governments, and may be removed by the president for rea- 
sons which seem good to him. 



366 Territories and Colonies. [§ 166 

The territorial legislature makes laws for the territory, and 
also creates local and municipal governments with power to 
make local ordinances. Every territory sends an elected 
delegate to Congress, who has the salary and most privi- 
leges of members, except the right to vote. The interest of 
the people of the territories in their government is smaller 
than that of the people of the states, because they have less 
control ; but the territorial system is an excellent preparation 
for future statehood. The expenses of the territorial govern- 
ments, about ^200,000 a year, are borne by Congress. 

The territorial legislatures have power to establish corpora- 
tions for public purposes, but there are many limitations on 
that authority. They may authorize the laying of taxes for 
local purposes, but cannot assess general territorial taxes. 
Territorial or local debts may be incurred, and taxes for paying 
such debts may be laid, only by the permission of Congress. 

National control over the territories is exercised partly by 
provisions in the statutes creating the territories, or by new 
legislation ; partly by appeals from territorial courts to federal 
courts ; and partly by the power of the president to remove 
territorial officers. The most striking instance of the disal- 
lowance of a territorial statute by Congress is the annulment, 
in 1887, of the laws of Utah relating to polygamy, and the 
dissolution of the corporation of the Church of Jesus Christ 
of Latter Day Saints, which had an old territorial charter ; 
and the farthest point of control by Congress was reached 
when, by the same act, Congress provided for the confiscation 
of the property of the Church and its application to public 
education in the territory of Utah. 

Territorial governments may be terminated in one of two 
ways : either by withdrawing the government altogether, as 
in Missouri Territory from 1820 to 1854 ; or by admitting the 
territory as a state, in which case the old territorial laws con- 
tinue in force until altered by the new state government. 

In the early Western territories, the organizing force was 
men of Anglo-Saxon stock, emigrants from the Eastern com- 



§ i66] • Dependencies. 367 

munities. A new problem was presented in 1803, when 
Louisiana became a territory, with a French and Catholic 
population, a different system of laws, and a total lack of ex- 
perience of representative government ; the new community 
protested so strongly against the appointive legislature created 
in 1804 that in 1805 it received a representative legislature. 
The Floridas had a small population when annexed, and within 
a few years Anglo-Saxons arrived in sufficient numbers to take 
possession of the government. Texas had been organized by 
settlers from the United States long before it was annexed. 
California had less than 300 Americans when it was annexed 
in 1848, but the discovery of gold speedily brought an Ameri- 
can and European population, which organized a state govern- 
ment ; it never was a territory. New Mexico and Arizona to 
this day have many Mexicans ; in these communities it has 
been found hard to organize a government on the American 
pattern. 

The conditions were different in the three annexations of 
1898, — the Hawaiian Islands, Porto Rico, and the Philip- 
pine Islands. The Hawaiian Islands contain about 35,000 
natives, 26,000 Chinese, 61,000 Japanese, 13,000 Europeans, 
and about 20,000 Americans and their descendants. The ter- 
ritorial government established by Congress in 1899 was of 
the usual type, with an elective legislature and an appointive 
governor of American descent resident on the islands ; but it 
has been found hard to make the system work with a mixed 
population. Porto Rico, the whole population of which is a 
civilized people, received in 1900 a special and unusual terri- 
torial government, in which the upper house of the legislature 
contains a majority of appointive members ; the governor is 
appointed by the president, and sent out from Washington. 

The government of the Philippine Islands presents more 
difficulties, because they contain a large civilized population, 
and also a large element of natives of various degrees of 
savagery ; and because, from the occupation of Manila in 
1898 down to 1902, an insurrection was continuously going on. 



368 Territories and Colonies. [§ 166 

For the government of the PhiHppines, Congress on March 2, 
1 90 1, adopted the unusual, though not unexampled, method 
of authorizing the president to establish such a form of govern- 
ment as he saw fit; but on July i, 1902, a thorough detailed 
territorial government was established, headed by an executive 
commission. There is provision for future representation of 
the people, and they already take part in the local govern- 
ments so far as they show capacity. 

At present there are three very distinct types of legally- 
organized territorial governments: — (i) That enjoyed by 
nearly all the territories from 1787 down, with a representa- 
tive territorial assembly and with considerable powers to make 
laws. There are now four such territories, — New Mexico, 
Arizona, Oklahoma, and Hawaii. (2) The form applied to 
the Northwest Territory, in which one branch of the legisla- 
ture is appointive, thus giving the president indirect power to 
prevent legislation which he thinks unwise. Porto Rico is at 
present the only example. (3) Areas in which the people 
have no part in choosing their legislatures, and therefore no 
self-government in general matters, although local self-govern- 
ments may be set up. This is the type of Alaska and the 
Philippines. All these types of government are created by 
act of Congress, may be altered by act of Congress, and have 
no other authority than such as Congress chooses to confer 
upon them. 

In any other country such governments would be called 
"colonial." Indeed, the present government of Oklahoma 
strikingly resembles the government of New York before the 
Revolution : an appointive governor ; judges appointed directly 
or indirectly by the crown ; an elective assembly subject to 
the governor's veto ; acts passed and approved by the gov- 
ernor, subject to reversal by the home government ; appeals 
allowed from the decisions of the judges to a court of the 
general government. In truth, the territories are and ever 
have been colonies, the main difference from the English 
colonies being the expectation that the territories would 



§ 167] Unorganized Dependencies. 369 

eventually become states ; but Montana was nearly ninety 
years in the territorial condition before it was admitted into 
the Union, and New Mexico with a considerable population 
has remained a territory from 1850 to 1903. 

167. Unorganized Dependencies. 

The next group of regions subject to the exclusive jurisdic- 
tion of the United States is territory which has become a part 
of the Union but has received no organized government, and 
the people of which have not a completely-defined body 
of rights. To make this subject plain, the various steps in 
acquiring authority over new territory must be noticed. 

(i) During a military campaign outside our boundaries, 
the commanding general exercises governmental authority 
over all the territory within his lines, as a part of his power to 
make war. For instance, in the Mexican War, General Scott 
laid and collected customs duties and internal taxes in Mexico ; 
and in 1899 General Wood laid taxes in Cuba. Such acts 
hold good till the region thus occupied becomes vested in the 
United States by a treaty of peace. 

(2) After cession by a treaty, before Congress has taken 
any action, to some degree the acts of the previous military 
government are continued in force provisionally ; but no tax 
can be laid except by Congress. When in 1899 the president 
authorized a special tariff for Porto Rico, the Supreme Court 
decided that nobody but Congress could levy or authorize 
the levying of taxes in such annexed territory. 

(3) Congress may pass temporary acts for the government 
of territories and may define their powers. The precedents 
cited above show that Congress has often enacted such laws, 
— as, for instance, the act of March 3, 1901, authorizing the 
president to establish a civil government in the Philippines. 

(4) Do the previous general statutes of the United States 
apply to the new regions as soon as they are annexed ? Since, 
under the theory of the American government, no community 
except a state has a right to create a government for itself, 

24 



370 Territories and Colonies. [§ 167 

what is the situation of the annexed people ? After the ratifi- 
cation of the treaty of 1803, and before Congress had passed 
any statute, — that is, for about a year, ■ — Louisiana remained 
in an unorganized condition. On October 31, 1803, Congress 
authorized the president to take possession of the territory, 
and to administer it until Congress should act; on March 26, 
1804, the first form of government for Louisiana was created, 
with an appointive council; and on March 2, 1805, the 
normal territorial representative government was estabhshed. 
So in 1 82 1 Congress authorized the president to take posses- 
sion of Florida; he deputed Andrew Jackson as governor, 
and endowed him with all the authority previously exercised 
by the Spanish captain general, till a regular territorial govern- 
ment was organized. From 1846 to 1848 Oregon remained 
without a territorial government. California was acquired in 
1846, and during the war was administered by a military gov- 
ernor ; in 1848 it became a part of the Union, but no terri- 
torial government was ever organized, and two years later it 
was admitted as a state. Alaska was annexed in 1867, and 
was made a customs district in 1868; in 1884 Congress 
authorized a governor and a district court, and enacted that the 
laws of the state of Oregon should be the laws of the district 
of Alaska so far as applicable; in 1899-1900, better regula- 
tions for government were adopted and also civil and criminal 
codes ; but it never has had a regular organized territorial 
government. The basis of these precedents, which do not 
always agree with each other, must be found in one or another 
of two colonial theories. 

(i) The first theory is that, the moment a treaty is ratified, 
the people of the territory are thereby completely incorporated 
into the United States, so that every law passed in general 
terms applies to them : they come within the customs bound- 
aries and are subject to the same rate of import duties as 
residents of the states, and are entitled to unrestricted trade 
between the different parts of the United States ; above all, 
the people of such regions become subject to all the privileges 



§ 167] Unorganized Dependencies. 371 

of freedom embodied in the constitution, such as trial by 
jury, habeas corpus, indictment by grand jury, counsel in 
criminal cases, and the right to keep and bear arms. 

This theory of incorporation is subject to two practical 
difficulties, not felt when Louisiana or Oregon or even Alaska 
was annexed, because these territories were all in North 
America, and because at the time of annexation the number 
of people concerned was small, (a) The principle would 
require the collection of import duties on the same scale 
in Porto Rico and the Philippines as in New York or Cali- 
fornia, a system which might not be to the interest of either 
the continental or the insular United States. (^) The Amer- 
ican and English system of judicial rights is not in accordance 
with Spanish law, nor is it adapted to people of imperfect 
civilization, or to a community in which there are people of 
very different grades of civilization. 

(2) A rival theory is that, when territory is annexed, it 
ceases to be foreign territory but does not become complete 
domestic territory, — that, until Congress acts, it is in a mid- 
way status ; hence that, although duties cannot be collected 
under the regular legal tariff on foreign imports from Porto 
Rico into New York (because Porto Rico is not foreign), 
yet Congress may specifically extend the regular tariff to 
the annexed territory, or may provide a special rate of 
duty on importations from the dependency into the states 
(as from Porto Rico into New York), or may provide a 
special tariff on imports, into the dependency from a foreign 
territory. 

This theory was upheld and the discretionary power of 
Congress over the tariff in the dependencies was approved 
by a majority of the Supreme Court in its famous decision in 
the Insular cases in 1901. The judges said that it was in the 
power of Congress to decide when territory was completely 
incorporated ; and that, when new territory came into the 
Union, Congress might make for it a set of laws (including 
tax laws) different from the laws applying to that part of the 



3/2 Territories and Colonies. [§ 167 

Union organized as states. The court did not distinctly pass 
on the question whether the people of the dependencies have 
all the personal rights guaranteed by the constitution, content- 
ing itself with holding that such clauses of the constitution as 
are " applicable " apply to the dependencies. 

In accordance with these decisions, the president by proc- 
lamation, on July 25, 1902 (the conditions imposed by the 
act of Congress of April 12, 1900, having been fulfilled), 
formally brought the island of Porto Rico within the customs 
boundary, and then gave it entire freedom of trade to and 
from the states; but Congress, on March 8, 1902, made a 
special scale of duties on importations from the Philippines 
into the continental United States and vice versa, and a special 
tariff on importations into the Philippines from foreign coun- 
tries. On the question of personal rights, it enacted on July i, 
1902, that the constitution, excepting the clauses for a jury 
trial and the right to keep and bear arms, should apply to the 
Filipinos. 

The reasoning of the Supreme Court would seem to make a 
fundamental difference between the people and governments 
of that part of the Union organized as states and the people 
and governments of other parts of the federal union. It 
places the present dependencies upon the following prin- 
ciples : — (i) When territory has been admitted as a state, 
its people have all the guaranties expressed in the constitution, 
and are subject to all the general acts of Congress. (2) For 
regions outside the states, Congress has the right to create such 
forms of government as it sees fit ; but in practice it creates 
representative government, except where it believes true rep- 
resentation cannot be obtained ; and all such governments 
are subject to alteration or control by Congress. (3) Congress 
may adopt a special tax system for such regions. (4) Con- 
gress decides when new territories shall be incorporated into 
the Union, and may by statute declare that the people of a 
particular territory, or of the territories altogether, are entitled 
to certain specific constitutional rights. When an act of this 



§ i68] Dependencies. 373 

kind is once passed, it would seem that it is not in the power 
of Congress to repeal it. 

In avoiding one series of difficulties, the courts have created 
another : up to 1901 it had been supposed that the general laws 
of Congress applied also to the District of Columbia and the terri- 
tories ; but if Congress may make a special tariff for Porto Rico^ 
why may it not make one for New Mexico or for the District? 

Although in principle there seems to be no difference be- 
tween the power of Congress over the so-called " organized 
territories " and the unorganized dependencies, yet in practice 
it has set up for the " territories " a government with a rep- 
resentative assembly and a degree of personal rights not less 
than that in the states ; and for the " dependencies " a govern- 
ment with appointive assemblies, or parts of assemblies, in 
which the people have not yet received all the personal rights 
guaranteed by the constitution. The status of our dependen- 
cies therefore seems to be almost exactly that of the American 
colonies just before the Revolution, when Parliament undertook 
to annul charters and to prevent the elective assemblies from 
meeting. Through its system of territories, and of special 
dependencies separated from the continent of North America 
by seas or broad oceans, the United States has taken a posi- 
tion in the world like that of other colonizing powers, such as 
England, France, Germany, and Portugal. The ground for 
the difference in government between the self-governing terri- 
tories and the dependencies is substantially the belief of the 
American people that the latter are not yet fitted to be trusted 
with their own government ; but in both Porto Rico and the 
Philippines it is hoped to create local governments, under 
the supervision of the territorial officers, which shall permit the 
participation of the people and lead to more complete local 
self-government. 

168. Protectorates. 

Like other colonizing nations, the United States has some 
protectorates, — that is, countries not in any sense within our 



374 Territories and Colonies. [§ i6S 

boundaries, yet so far under our i-nfluence that they are not 
completely independent, (i) The first of these is Liberia, 
founded on the coast of Africa by the American Colonization 
Society in 1820, under the virtual protection of the United 
States. The United States sends a minister to Liberia ; and 
it has always been understood that no other power would be 
permitted to annex or seriously to molest it. 

(2) Something very like a protectorate was exercised over 
the Hawaiian Islands, into which American emigrants went 
about 1820. Everybody understood for years that the United 
States would not permit any other power to annex or to ad- 
minister Hawaii, and at various times, as for instance in 1852 
and in 1893, attempts were made to annex it to the United 
States. 

(3) From 1836 to 1845, by its very intimate relations with 
Texas, the United States practically exercised a protectorate 
over that nominally independent republic, 

(4) From about 1882 to 1899 the United States was one of 
three powers to exercise a protectorate over the nominally in- 
dependent government of the Samoan Islands, since divided 
among the three powers, Great Britain, Germany, and the 
United States. 

(5) A curious kind of protectorate was exercised over Cuba 
from 1823 to 1898 : the United States many times asserted 
the principle that no foreign power should be allowed to take 
Cuba from Spain, and even went so far as to promise Spain the 
protection of our fleet if needed. 

(6) A distinct Cuban protectorate was established in 1898, 
when the United States sent an army to Cuba and compelled 
Spain to accept a treaty, ratified in February, 1899, by which 
Spain withdrew from Cuba but did not transfer it to the United 
States. For more than three years longer the United States 
remained in Cuba and kept up a military government. On 
April 18, 1898, just previous to the declaration of war, both 
houses of Congress united in a resolution that the people of 
Cuba "are and of right ought to be free and independent," 



§ i68] Protectorates. 375 

and that the United States would leave the government and 
control of the island to its people. Hence the president aided 
the Cubans in framing a new constitution ; but Congress laid 
down as a condition of our approval that in their new consti- 
tution the Cubans insert a promise not to enter into foreign 
relations without the consent of the American government, and 
to assign to the United States naval stations on the coast of 
Cuba. The relations between the two countries are such that 
the United States is bound to intervene to prevent any foreign 
aggressions, and is practically so far responsible for the con- 
tinuance of good order in Cuba that it must intervene in case 
civil war should again break out in the island. 

(7) An opportunity to exercise a somewhat similar protec- 
tion in China arose in 1900, when there was a joint expedi- 
tion of the Western powers up to Pekin to rescue the diplomats 
and missionaries who were there besieged. The United States 
distinctly set itself against a suggestion that the different pow- 
ers should each take a piece of the Chinese territory, and 
was the main instrument in securing a settlement by which, on 
receipt of a money indemnity for their losses and expenses, 
the Western powers should withdraw their troops. 

(8) In practice the United States exercises something like 
a protectorate over Mexico, not formally through the govern- 
ment, but by the influence of American capital there, which 
practically requires a guaranty from the Mexican government 
that good order shall be maintained and that property shall be 
respected. Should civil war break out in Mexico, it is prob- 
able that the United States would make a vigorous protest in 
defence of the property of its citizens. 

(9) Two treaties have recognized the special protection of 
the United States over isthmus transit. The treaty of 1846 
with the United States of Colombia agreed to guarantee to 
that country the possession of the Isthmus of Panama, and 
to maintain order on any land or water communication across 
the Isthmus ; under this partial protectorate, troops have 
been repeatedly landed to protect the terminals and the line 



376 Territories and Colonies. [§ 169 

of the Panama railroad. The Clayton-Bulwer treaty of 1850 
asserted a joint guaranty of any isthmus canal by Great 
Britain and the United States ; but it was formally rescinded, 
with the consent of Great Britain, in 1902. Negotiations 
thereupon began with the United States of Colombia as pro- 
prietor of the Isthmus of Panama, and with Nicaragua as 
proprietor of the Nicaragua Canal route, for possession of a 
strip ten miles wide extending from ocean to ocean, with the 
right to police and protect it. Such a relation would make of 
either canal route a protectorate, if not a dependency ; and 
in keeping order over the canal the United States would be 
nearly certain to feel a responsibility for keeping order also in 
the adjacent country. The territory between the canal and 
the present southern boundary of the United States would 
also come into a similar relation with the United States ; for 
no other country could possibly be allowed to take it or 
seriously to affect its destiny. 

169. The Monroe Doctrine. 

A further form of territorial influence outside the acknowl- 
edged boundaries of the United States is the principle of 
special and paramount interest in American questions, to some 
phases of which the term " Monroe Doctrine " is now applied. 
The original Monroe Doctrine, drafted by John Quincy 
Adams and inserted in the president's message of 1823, was a 
protest against two things : the attempt of Russia to occupy 
the Northwest coast, on the assumption that it was possessed 
by no other civilized power ; and the attempt of France, in 
behalf of a European coalition, to interfere in Central and 
South America with the purpose of compelling the Spanish 
colonies to return to their allegiance to Spain. The first 
point of the Monroe Doctrine was that the whole continent 
of North America was already either occupied or claimed 
by other powers, and hence was not subject to further new 
colonization. This declaration against European intervention 
in America caused the plan to be dropped, and the only case 



§ 169] Monroe Doctrine. 377 

of such intervention since that time was that of the French in 
Mexico in 1860-67. 

The Monroe declaration asserted a special interest of the 
United States in neighboring American countries ; and hence, 
when other kinds of questions arose with regard to our 
American neighbors, it was thought useful to give the name 
Monroe Doctrine to protests really based on new reasons. 
Thus in December, 1845, President Polk said that the Monroe 
Doctrine included the principle of a balance of power in 
America; and in 1848 he declared that the Monroe Doctrine 
forbade any part of North America voluntarily to transfer itself 
to a European power. 

The real principles of the Monroe Doctrine were put to the 
test in 1 86 1, when a French army, taking advantage of the 
complications of the Civil War, invaded Mexico and set up a 
monarchical government supported by French bayonets, for 
the express purpose of impairing the influence of the United 
States in America. Secretary Seward nowhere distinctly re- 
ferred to the Monroe Doctrine as his authority, but steadily 
protested with increasing force, till in 1867 Napoleon III 
took the warning and evacuated Mexico. President Johnson 
repeatedly referred to the Monroe Doctrine, and in 1868 in- 
sisted that we must annex some of the West India Islands in 
order to maintain it ; and President Grant took the same 
ground with reference to the annexation of San Domingo. 

About 1880 arose to magnitude a new American question, 
political and territorial, — namely, the question of an inter- 
oceanic canal across the American isthmus. Secretary Evarts 
in 1880, Secretary Blaine in 1881, Secretary Frelinghuysen 
in 1882, all insisted that the Monroe Doctrine gave the United 
States sole right to control such a canal, because the participa- 
tion of European powers in such control would be an applica- 
tion of the European political system to America. This rather 
far-fetched doctrine did not prevent the actual beginning of 
a canal across the Isthmus of Panama by a French engineer ; 
but the failure of the company in 1889, before the canal was 



37^ Territories and Colonies. [§ 17° 

half finished, again brought up the question of the special 
interest of the country in that canal, and in 1902 the United 
States asserted undisputed authority to build, maintain, and 
police such a watervvay. 

In 1895 Secretary Olney and President Cleveland declared 
that the Monroe Doctrine extended to a boundary controversy 
between England and Venezuela, and urged that the Doc- 
trine contemplated the extinction of all European colonies in 
America. This was not Monroe's meaning ; and England in 
correspondence insisted that through her colonies Great Britain 
was also an important American power. The English posses- 
sions, however, are for the most part so distant from Central 
America, from the canal, and from South America that the 
United States must always be the main political force in that 
part of America. 

In 1901-02 President Roosevelt and Secretary Hay came 
to an understanding with the German government that the 
Germans would attempt to make no national settlements in 
South America ; and it is plain that there will be no further 
attempt to annex any part of Central or South America to 
any European power. To that extent the United States pro- 
tects the country south of it, without, however, taking any 
responsibility for good or bad government in the neighboring 
American countries. In 1903 the United States made no pro- 
test against an armed demonstration and blockade by Ger- 
many, Italy, and England against Venezuela, in order to 
secure the adjustment of claims for injuries to the person and 
property of their citizens. 

170. Colonial Problems. 

The great extension of the territory of the United States 
since 1898 brings the country into new relations with the 
world, and a few of the main difficulties of the position may 
here be stated. 

(i) By our possession of distant colonies having language, 
religion, customs, and problems unfamiliar to Americans, we 



§ lyo] Colonial Problems. 379 

have taken up the position of a colonizing nation. Until 1898 
we could point out the faults of the English in South Africa, 
of the P'rench in Cochin China, of the Germans in East Africa, 
of the Spanish in Cuba ; but Americans now understand that, 
in dealing by military power with an alien and distrustful 
people at a great distance, insurrection, brigandage, and 
cruelty of both races will break out in spite of efforts to pre- 
vent them. 

(2) The annexation of an island in the West Indies, and 
of a group in the South Pacific, is evidence of an intention 
to take part in the development of the world's commerce 
both West and East. The main advantage of the Philippines 
is to give the Americans a point of vantage for the enormous 
trade which is expected to open up in Eastern Asia. 

(3) The possession of colonies brings about many unfore- 
seen complications in the government of the home country : 
we have one set of political principles for the people living 
in the states, another for the people living in organized terri- 
tories, and another for the people living in dependencies. 
This is hard to reconcile with the belief of our forefathers 
that the great principles of the Declaration of Independence 
applied to all free people in all times. 

(4) The administration of so many different kinds of terri- 
tory is difficult, because it must include questions of taxation 
and of the regulation of trade. Goods may be sent from New 
York to any other state in the Union, and also to Porto Rico 
and Hawaii, without paying duties ; but goods sent from Cali- 
fornia or Hawaii to the Philippines pay special duties on arrival 
in those countries ; in like manner, imports from the Philip- 
pines into the United States, if the growth and product of the 
islands, pay three fourths the regular tariff duties. This neces- 
sary distinction produces friction and heart-burnings ; it also 
involves the passing of laws to protect American industries 
against other American industries, — that is, against the labor 
and manufactures of our own dependencies. On the other 
side, it involves taxing those dependencies for the benefit of 



380 Territories and Colonies. [§ 170 

trade with the home country, yet such discriminations are 
exactly what our ancestors protested against in the Revolu- 
tionary War. 

(5) Another colonial problem is that of providing a proper 
civil service for those remote regions. The United States has 
exercised great care and discretion in the appointment of 
governors, both for the Philippines and for Porto Rico, and 
has provided an admirable subordinate service. Unless such a 
service is kept up, misgovernment and misery must inevitably 
follow. 



Part VII. 
Financial Functions. 



CHAPTER XXI. 
TAXATION. 

171. References. 

Bibliography : D. R. Dewey, Fiitancial Hist, of the U. S. (1902), In- 
troduction and chapter headings; Municipal Affairs, V, 70-75 (1901) ; 
Bowker and lies, Reader's Guide (1891), 66-73; ^- ^- Hart, Manual 
(190S), §§ 117, 118, 220, 221; E. McClain, Constitutional Law (1905), § 
68; R. C. Ringwalt, Briefs on Public Questions {1906), Nos. 12, 23; 
Brookings and Ringwalt, Briefs for Debate (1896), Nos. 27, 36, 37, 45, 
46. 

Finances in General: H. C. Adams, Science of Finance (1899); J. 
Bryce, Am. Commonwealth (ed. 1901), I, chs. xvii, xliii; W. M. Daniels, 
Elements of Public Finance (1899) ; D. R. Dewey, Financial Hist. (1902) ; 
J. W. Kearny, Sketch of Atnerican Finances (1877); E, C. Mason, Veto 
Power (1890), §§ 18-20, 35, 52-81; A. D. Noyes, Thirty Years of Am. 
Finance (1898); G. S. Boutwell, Constitution (1895), chs. vii, viii, xxiv, 
XXV, xxix, xxxi ; E. McClain, Constitutional Law (1905), §§69-79; R. L. 
Ashley, Am. Federal State (1902), ch. xxv ; J. I. C. Hare, Am. Coiistitu- 
tiotial Law (1889), I, Eects. xv-xvii; J. R. Tucker, Constitution (1899), I' 
456-518; J. J. Lalor, Cyclopedia (1882-1884), articles on Cities, Debts, 
Deposits, Income Tax, Independent Treasury, Internal Revenue, Muni- 
cipal Bonds, Refunding, Repudiation, United States Notes, United States 
Surplus, Whiskey Ring; T. M. Cooley, Constittitional Law (3d ed., 1898), 
ch.iv, § I ; H. von Hoist, Constitutional Law (1887), §§ 35-37,96; National 
Conference for Good City Government, Proceedings, 1899, pp. 99-161; 
1900, pp. 239-256; Statistics, in Tribune Almaftac, Werld Ahnattac, Apple- 
tons'" Annual Cyclopczdia, Statistical Abstract. — Periodicals : The Natioji ; 
Bradstreefs ; The Economist ; Qtiar. Journal of Economics ; Pol.Sci. Quar. ; 
Annals of the Am. Acad, of Pol. Sci. ; Journal of Political Economy ; Yale 
Review ; National Municipal League, annual Proceedings. 

381 



382 



Taxation. [§ 171 



Forms of Taxation : E. R. A. Seligman, Essays in Taxation, chs. i, 
viii, xi; E. R. A. Seligman, Shifting and Incidence of Taxation (2d ed., 
1899); E. R. A. Seligman, Economics (3d ed., 1907), § 115; C. H. Swan, 
Jjnpersonal Taxation (Am. Acad. Pol. Sci., Annals, Sept., 1907, Supple- 
ment) ; Industrial Commission, Reports (1900-1902), XI, XIX, 1014-1070; 
J. F. Dillon, Municipal Corporations (4th ed., 1890), II, ch. xix; T. M. 
Cooley, Law of Taxation (2d ed., 1886) ; T. M. Cooley, Constitutional Lim- 
itations (6th ed., 1890), ch. xiv ; B. A. Hinsdale, Am. Government (rev. ed., 
1895), ch. xliii, §§ 342-346; J. Bryce, Am. Commonwealth (ed. 1901), I, ch. 
xliii ; C. W. Eliot, Ant. Cotitributions to Civilization (1897), Nos. xiii, xiv; 
H. George, Progress aiid Poverty (1879), Book VIII, chs. iii, iv ; R. T. Ely, 
Taxation in Am. States and Cities (1SS8) ; F. C. Howe, Taxation under the 
Internal Rev emie System (1896) ; M. West, Theory of Inheritance Tax, City 
and Country Taxes {Pol. Sci. Qnar. ,V111. 426-444 > XIV. 305-324, 470-499 
1893, 1899) ; J. C. Schawb, Hist, of the N. V. Property Tax (Am. Econ. 
Assoc, Publications, Y, No. 5, 1890); L. Purdy, Taxation of Personalty 
{Municipal Affairs, III, 299-327, 1899) ; C. F. Dunbar, Z^zV^rf Tax, Income 
Tax {Quar. Journal of Economics, III, 436-461; IX, 26-46, 1889, 1894); 
J. A. Hill, Civil War Income Tax [Ibid., VIII, 416-452, 491-498, 1894) ; 
C. J. Bullock, Direct Taxes tmder the Cotistitution {Pol. Sci. Quar., XV, 
217-239, 452-481, 1900) ; F. L. Olmsted, Tobacco Tax {Quar. Journal 
of Eco7iomics, V, 193-219,262, 1891) ; H, C. Bannard, Oleomargarine Law 
(Pol. Sci. Quar., II, 545-557, 1887); R. L. Ashley, Am. Federal State 
(1902), ch. xxv. 

Assessment and Collection of Taxes : V. Rosewater, Special 
Assessments (1893) > ^- Walker, Double Taxation (1895); T. M. Cooley, 
Co7istiiutional Lit7iitations (6th ed., 1890), ch. xiv ; T. M. Cooley, Law 
of Taxation (2d ed., 18S6), ch. xii; F. R. Clow, Comparative Study of the 
Administration of City Finances (Am. Econ. Assoc, Publicatio7is, 3d ser. 
II, No. 4, 1901); N. Matthews, Double Taxation [Quar. Journal of 
Economics, IV, 339-345, 1890) ; J. W. Chapman, State Tax Commissions 
{Johns Hopkins University Studies, XV., Nos. lo-ii, 1897); E. A. 
Angell, Tax Inquisitor System in Ohio {Yale Review, V, 350-373, 1897); 
T. N. Carver, Ohio Inquisitor Tax Law (Am. Econ. Assoc, Economic 
Studies, III, No. 3, 1898) ; R. H. Whitten, Assessment in Chicago [Jour- 
nal of Pol. Economy, V, 173-200, 1897) ; F. J. Goodnow, Collectioti of Duties 
[Pol. Sci. Quar., I, 36-44, 1886) ; E. J. Shriver, How Customs Duties Work 
{Ibid., II, 265-273, 18S7). 

Customs Duties and Protection : W. Hill, Colonial Tariffs {Quar. 
Journal of Economics, Yll, 78-100, 1892) ; M. E. Kelley, Tariff Acts under 
the Confederation [Quar. Jourttal of Economics. II, 473-481, 1888); W. 
Hill, First Stages of the Tariff Policy (Am. Econ. Assoc, Publications, 



§ 172] Land Taxes. 383 

VIII, No. 6, 1893) ; E- Atkinson, Taxation and Work (1892), chs. i-xxv, 
XXX, xxxi ; W. G. Sumner, Lectures on the History of Protection (1877); 
H. Miinsterberg, Americans (1905), ch. xiii ; A. ^\i3i-w. Political Problems 
(1907), ch. ix. ; O. L. Elliott, Tariff Cont7'Oversy (1892) ; D. R. Dewey, 
Finaftcial Hist. (1902), chs. viii, xi, xix, xx ; A. B. Hart (editor) Ameri- 
can Nation (1904-1908), chapters in the successive volumes on the tariffs 
of 1789, 1816, 1824, 1828, 1832, 1833, 1846, 1857, 1861, 1883, 1890, 1894, 
1897; see index vol.; E. Staxwvood, Tariff Co7ttroversies (2 vols., 1903); 
E. L. Godkin, Problems of Modern Democracy (1897), No. 3 ; J. D. Goss, 
Tariff A dfninistration (1881); F. W. Taussig, Tariff History (4th ed., 
1898) ; F. J. Goodnow, Collection of Duties ( Pol. Sci. Quar., I, 36-44, 
1886) ; E. J. ^hx\we.r,How Customs Duties Work {Ibid., II, 265-273, 1887) ; 
S. B. Harding, Minimimi Principle (Am. Acad. Pol. Sci., Anttals, VI, 
IOO-116, 1895) ; T. B. Reed, Tariff ajid Business {North Am. Rev., CLVIII, 
110-118, 1894). — Sources : F. W. Taussig, State Papers and Speeches on 
the Tariff {iSg^} i E. Young, Special Peport on the Customs Tariff Legis- 
latio7i {House Executive Documents, 42 Cong., 2 sess., No. 109, 1872) ; 
A. B. Hart, Contemporaries (1897-1901), III, §§ 78, 130; IV, §§ 164, 166; 
Tariff Hearings before the Cofnmittee on Ways and Meatts, 1893 {House 
Miscellaneous Documents, 53 Cong., i sess., No. 43) ; D. M.z.\\\\\x\g, Reports 
of the Secretary of the Treasttry (1885, 1886) ; Secretary of the Treasury, 
Anjtuat Report; Commissioner of Customs, Annual Report. 

172. Land Tazies. 

Next in importance to territorial functions are the financial : 
without the expenditure of money no power requiring private 
lands, buildings, materials, stores, or land and naval forces, can 
be carried out. For all these outgoes, governments rely on 
four sources, — taxes, loans, fees, income from public prop- 
erty. The federal, state, and local governments have very 
little productive property, and the American theory of public 
debt is that it is something to be paid and extinguished ; 
hence the usual reliance for the support of government is 
taxation. 

Taxation rests in the inherent principle that governments 
have a legal right, in return for the protection and good order 
which they afford, to take such part of the annual product of 
the country, by imposing taxes payable in money, as may be 
necessary for governmental purposes. So long as people all 



384 Taxation. [§172 

have about the same kind of property, — are all farmers, all 
artisans, or all sailors — it is not difficult to find a basis of 
taxation which will bear about equally on all the members in 
the community. In a compHcated society Hke that of the 
United States, with many kinds of people and property, taxes 
are numerous and often inequitably distributed. 

The most obvious subject of taxation is land, or rather real 
estate, which is land and the permanent structures resting 
upon it ; in cities the buildings may be worth as much as the 
site, while the farm land far exceeds farm buildings in value. 
Throughout the United States, this is the main source of state 
and municipal revenue ; but there are many kinds of land, 
from barren mountains to corner lots in Wall Street, and the 
land tax is full of inequalities and variations. Fortunately, 
the problem is simplified by the fact that the federal govern- 
ment has rarely exercised its constitutional authority to tax 
land. Direct taxes were assessed upon land in 1798, 18 14, 
and 1 86 1, but under the constitution they had to be distrib- 
uted in proportion to population. Hence, for forty years 
there has been no federal land tax : it has been left to the 
states and municipalities, to which the land tax furnishes from 
three fourths to nine tenths of all their income. 

Land is visible property, and hence cannot escape the 
assessors ; land is valuable property, almost always finding a 
purchaser at some figure ; the value of land can be estimated 
from the occasional sales of neighboring property; land is the 
absolute condition of all human existence, since every family 
must have ground under its feet : the weight of a land tax 
is therefore more widely distributed than any other form of 
taxation ; and it is almost sure of collection, because unpaid 
taxes are a first lien on the land. One of the changes most 
ardently demanded by some tax reformers is to throw the 
whole taxation upon land, partly because of the ease of assess- 
ment and collection, partly because it is hoped in this way to 
gain for the public some of the advantages of the rapid increase 
of real-estate values in crowded communities. 



§ 173] On Personal Property. 3S5 

173. Taxes on Personal Property. 

In addition to land taxes, every state and city levies a vari- 
ety of other taxes, the most common of which is the poll-tax, 
ranging from 30 cents in some states up to $3 in others. 
This is assessed on adult men ; unless they are holders of other 
property, it is difficult to collect, even when payment is made 
a prerequisite to voting. 

Personal-property taxes are assessed on visible personal 
effects, such as furniture, clothing, watches and jewelry, on 
machinery, animals, stocks of goods, ships, and other property 
not attached to land ; and also upon money in hand and upon 
paper evidences of property. Since thousands of millions of 
dollars in the United States are held in the form of paper 
obligations — public securities, mortgages, corporation stocks 
and bonds, — most of the states attempt to tax such posses- 
sions as part of the wealth of the holders. Unfortunately, in 
most cases they are only evidences of visible property, which 
is taxed where it lies : a land mortgage is practically a tem- 
porary part-ownership in a piece of real estate ; and railroad 
bonds simply represent the roadbed, stations, and rolling stock 
of the railroad, all of which are already subject to taxation. 
Such property is easy to conceal, and therefore hard to assess 
equitably, especially when the holders of securities feel that 
they are taxed double. 

Another personal tax is on incomes ; but few states make 
much use of their power to lay income taxes, although these 
exist in Massachusetts, Pennsylvania, Virginia, and North 
Carolina. The federal government has twice laid an income 
tax over the whole country : by acts of July 2, 1862, and June 
30, 1863, 3 per cent was payable on all incomes exceeding 
^600 a year and less than ^10,000, 5 per cent on incomes of 
^10,000 and over, and 10 per cent on incomes above $10,000. 
It was always an unpopular tax: first, because it could be 
fairly assessed only by detailed' and unwelcome inquiries into 
the business affairs of wealthy men ; secondly, because various 

25 



386 Taxation. [§ 173 

deductions were allowed, — for instance, all state and local 
taxes ; in the third place, because evasion was easy and hence 
the tax very unequal. In 1866 this tax produced ^61,000,- 
000; in 1867, ^57,000,000. The total proceeds were in ten 
years about ^347,000,000, but this sum was paid chiefly 
by people in a few wealthy states. In 1872 the tax was 
repealed. 

In 1894 the so-called "Wilson-Gorman Tariff Bill " some- 
what reduced the tariff". To offset the loss of revenue, a 
second income tax was enacted, levying 2 per cent on the 
surplus of incomes above ^4,000 ; receipts from interest on 
United States bonds and the salaries of United States officials 
were exempted. The act specifically included the net profits 
or incomes of most corporations, other than charitable and 
religious societies, savings banks, and insurance companies. 

Before this tax was fairly under way its constitutionality was 
attacked, although the similar income tax of 1862 had been 
held valid by the Supreme Court. That court, in a decision 
of April 8, 1895 {^Pollock \. Farmers' Loan and Trust Com- 
pany^, held unconstitutional that part of the act which taxed 
incomes from state, county, and municipal bonds, and incomes 
derived from real estate. The decision was based on the 
ground that a tax on the income from state bonds was equiva- 
lent to a tax on the state ; it was influenced by the fact that 
state taxes on incomes from United States bonds had repeat- 
edly been held unconstitutional. A tax on rent was held to 
be equivalent to a tax on land, and hence to be a direct 
tax. 

The decision practically destroyed the unity and fairness of 
the act; and on May 20, 1895, on a rehearing, the court 
went still farther, and declared that a tax on income of any 
kind was a direct tax, which under the constitution must be 
assessed in proportion to the population of the state. Four 
judges dissented, but the act was invalidated ; hence, in case 
of future need, the United States will be unable to make use 
of a form of taxation very common in other countries, very 



§ 174] License Taxes. 387 

elastic, very productive, and successfully tested during the 
Civil War. 

Another form of property tax is the so-called " succession 
duty," a tax on legacies,. It avoids most of the objections to 
an income tax ; for the value is easily ascertained, since prop- 
erty which passes by inheritance or by will is ordinarily trans- 
ferred through a probate court and is commonly inventoried 
and appraised ; hence no new or unusual inquiry into the 
amount of the property is necessary. The tax is also sub- 
tracted before the property comes into the hands of a new 
owner, who thus feels the sacrifice less. Succession taxes have 
been laid in nearly twenty states, usually with exemptions for 
property transferred to blood relatives, for small estates, and 
for charitable bequests. Perhaps the heaviest tax is that of 
Missouri, varying from 5 per cent to 7^ per cent, with very 
few exemptions. 

By act of June 13, 1898, a similar tax was levied by the 
United States, running as high as 15 per cent. It was soon 
held by the Supreme Court not to be a direct tax, and proved 
productive, especially as there was no exemption of charitable 
bequests. In states which already had collateral inherit- 
ance taxes, the double duty, federal and state, was in some 
cases one fifth of the whole property transferred. In 1902 
the federal tax was repealed, leaving the state taxes as 
they were ; and duties collected on charitable, religious, and 
educational bequests were refunded. 

174. Specific, Corporation, and License Taxes. 

Among the forms of state and municipal taxation is the cor- 
poration tax. This is sometimes laid on railroads and other 
corporations owning large amounts of real estate which is 
otherwise not sufficiently assessed ; but it is not suitable for 
corporations like banks and insurance companies, which have 
little real estate but do a profitable business. A favorite de- 
vice is to lay a lower tax on corporations chartered by a state 
than on "foreign corporations," a legal term which inclvicles 



388 



Taxation. [§ 174 



all corporations chartered by other states but doing business 
in the state concerned. This tax is ordinarily easy to collect ; 
for the names and holdings of the stockholders are bound to 
appear on the corporation books, and the tax may be paid in 
a lump and withheld out of dividends to the stockholders. 
Another form of taxation, best represented by the New York 
Corporation Tax of 1899, aims to tax the money value of 
franchises which have been given to corporations by states or 
municipalities. In many cases, traction companies have issued 
millions of bonds representing the earning value of their lines, 
— that is, they capitalize the free use of the streets. The 
theory of the New York law is that the fact of the company's 
receiving this valuable advantage without cost is no reason why 
it should also enjoy the privileges of freedom from taxes such 
as are laid on other kinds of value. 

Under the constitution, Congress has power to lay " direct 
taxes," provided they are proportioned among the states ac- 
cording to population. Five such taxes have actually been 
laid, — one in 1798, three during the war of 1812, and one 
in 1861 ; the first four acts made the assessment on slaves 
and land, the act of 1861 on land alone. In 1861 eleven 
states seceded from the Union and paid no part of the tax ; 
hence on March 2, 1891, Congress by statute refunded the 
;^2 0,000,000 which had been paid by the remaining states. It 
seems unlikely that Congress will again resort to a system of 
taxation which bears hardest on the poorer states. 

Since 1789 the United States has levied a duty on the ton- 
nage of ships, which are also subject to tax by the states as 
property. This duty ranges now from 3 to 6 cents per ton 
for each entry into port, up to 15 or 30 cents per ton per 
annum; it produces only about ^500,000 a year. A similar 
tax of 50 cents per ton for "light money" goes to the sup- 
port of lighthouses. 

A very common form of state and national taxation is for 
licenses to carry on specified occupations. In some states, 
hawkers, newsboys, and street musicians must be licensed; 



§ 175] Direct and Corporation. 389 

but the fee is small, and is intended only to keep the license- 
holder in bounds. Licenses are also required by auctioneers, 
insurance agents, brokers, commission merchants, inn-keepers, 
telephone companies, and many other occupations ; in Missouri, 
department stores are heavily taxed for licenses. The most 
common subject of a license tax is the manufacture and sale 
of liquors. 

175. Assessment and Collection of Taxes. 

It is easier to classify taxes than to collect them : one of the 
most serious problems of government is to find out what tax- 
able property exists, to state its value, and then to collect the 
tax that has been assessed ; and neither state nor nation is 
absolutely free as to either the object or the rate of taxation. 

The federal tax power is under serious limitations. The 
purpose of taxation is defined by a clause in the federal con- 
hUtution that taxes may be laid " to pay the debts and to provide 
for the common defence and general welfare." Congress can- 
not tax state property, or (under the Pollock decision of 1895) 
tax incomes from state securities ; it cannot tax the property 
of local governments of any kind, because that is really state 
property ; it can lay " no tax or duty ... on articles exported 
from any state"; and "all duties, imposts and excises shall 
be uniform throughout the United States." These export and 
uniformity clauses gave rise to the difficult questions as to the 
taxation of dependencies decided in the Insular cases of 190 1 : 
the Supreme Court practically held that these two limitations 
did not apply except to regions organized as states in the Union. 

Many state constitutions prescribe that taxes shall be laid 
only for public purposes, or that the annual state or municipal 
tax rate shall not exceed a certain proportion of the v/hole 
private property : in Texas, for example, only one half of one 
per cent can be levied for state purposes. By the federal 
constitution, the states are forbidden to lay either import or 
export duties ; this means that they cannot lay any kind of 
discriminating taxes on imported goods as such. 



390 Taxation. [§ 175 

Whenever, as frequently happens, the state and nation tax 
the same thing, the United States always comes in first, if there 
be any dispute. Under Supreme Court decisions, the states 
cannot tax any national property or national securities, or the 
income from national securities or national banks, though they 
may tax bank property on the same footing as other property ; 
and they cannot lay any tax on commerce from one state to 
another, because Congress alone has power to " regulate com- 
merce . . . among the several states." 

One result of the various limitations on taxation is that it is 
practically impossible either for states or for the nation to levy 
any duties on the movement of persons and commodities from 
one state to another; hence nowhere in the world, except 
perhaps in the Russian empire, is there so large an area in 
which there is absolutely free trade unfettered by protective 
or revenue duties. 

The problem of discovering taxable property is often per- 
plexing. Real estate can hardly fail to be listed in any hon- 
est system of assessment. Occasionally backwoods farms, 
islands, or pockets of the mountains may escape notice ; but 
in the cities, where the valuable real estate for the most part 
lies, there are elaborate maps in which the parcels appear. It 
is possible to assess property to the wrong person, but the 
remedy is easy : he may simply decline to pay the tax. 

The discovery of personal property is usually attempted by 
sending an elaborate list like that in the illustration, in which 
the owners of property of many different kinds are required 
under oath to set forth what they own. Furniture, books, per- 
sonal effects, stocks of goods, carriages and other vehicles, 
and draft animals, are not very difficult to find if assessors take 
sufficient pains. To discover the amount and whereabouts of 
evidences of property, — as notes of hand, mortgages, stocks 
and bonds, especially shares in corporations, — is extremely 
difficult, without such inquisitorial methods as are practically 
out of the question in a democracy. In practice it is found 
hard to get these descriptive lists back from tax-payers, and 



Auditor's Form No. i. 



SEE ASSESSORS' NOTICE ON THE BACK OF THIS SHEET. 



A. Schedule of the numbers, aTYhounts^ quantity and quality of all Personal Property in the poseetsion or under the 

control of . belonging to _ . — 

on the first day of April, X90'2j as listed by of the Town of. _ 

in the County of Cook, and State of Ulinoia. 

Toicn - - School District— T.— JZ -ViZlage ior City) of- - 



To Bo Fillc* by i*erlon or Persons nequired to List Personal Properly. 


1 


1 


4 


6 


6 


v»l 


3 


3 


ITEMS OF PROPERTY., 


(as determined 
by Aseessorl. 


AssoBSed -Value 
(Bxed by 
Assessor). 


so. 


Full Fall- 
Cash Value 


Quality anil Quantity, Description. Memo- 
randa as to Quality. Face Value, Etc. 




!■ 


1 

2 
3 
4 
6 
6 
1 
8 
9 
10 
11 

12 
13 

14 
16 

16 

n 

18 

19 
20 


1 

3 

4 
6 
« 

8 
9 
10 
11 

III 

i 

17 

18 
19 
20 

21 
22 


HorscB of oU ages, . . , . - 
Cattle of all ages, ..... 
Males and Asaes of all agsB, .... 
Sheep of all agea, - - - - - 
Hogs of all ages, , . . - . 
Steam Engines including Boilors, - 
Fire or Burglar-Proof Safes, - . . - 
Billiard, Pigeon-hole, Bagatelle, or other similar Tables 
































"■'" 1 " •" 








1 








1 








1 








1 


Carriages and "Wagons of ■whatsoever kind, 
■Watches and Clocta, . - • - - 
Sewing or Knitting Machinei, - . - - 
Piano Fortes, -.-... 
Melodeons and Organs, - - . - . 
Franchises, ---... 
Annuities and Koyaltiea, . - . - 
Patent Bights, ..... 
Steamboats, Sailing Vessels, Wharf Boats, Barges or 

other Water Craft, 

Merchandise on hand, .... 
Material and Manufactured Articles on hand. 
Manufacturers' Tools, Implements end Machinery 
(other than Engines and Boilers, ivhich are 
listed as auch), - • - - . • 
Agricultural Tools, Implements and Machinery, 
Gold and Silver Plate and Plated Ware, - 








1 






































Yearly GroSa Income, | 

Yearly Gross Income, $ 






































































































B>io{ Ihi Nit Imtiit 11 iHr Sp Kill iUtitDt 


22 
23 
24 

25 

26 

27 

-28 
29 

30 
31 
i2 
33 

34 

36 
35 


24 
2o 
26 

27 

28 
29 

30 
31 

32 
33 
.34 
35 

36 
37 
38 


Moneys of Bank, Banker, Broker or Stock Jobber, 
Credits of Bank, Banker, Broker or Stock Jobber, 
Moneys of other than Bank, Banker, Broker or Stock 
Jobber, .... . . 

Credits of other than Bank, Banker, Broker or Stock 
Jobber, 

Bonds and Stocks, ..... 

Shares of Capital Stock of Companies and Associa- 
tions not Incorporated by the Laws of this State, 

PaTTObrokera' Property, .... 

Property of Companies and Corporations other than 
hereinbefore enumerated, 

Bridge Property, 

Property of Saloons and Eating Houses, - 

Household or Office Fumituro and Property, - 

Investments in Keal Estate and ImproTements thereon 
{see Sec. 10), 

Grain on hand .... .... 

Shares of Stock of State and National Banks 

All other Personal Property required to be lialed 

Totals, 




^ 








-"W 
















Bii; Ihi M liout 11 ft! Spxiil gUlniiil __ 

Face Value being $ .- „ 


























BeingAmount u pet Affldarit 





















































































































I do solemnly swear that the foregoing is a full, complete and correct Schedule of allthe personal property subject to taxation in the county 

town, city, village and sehool. district above mentioned, owned by me. or controlled by me as agent for. _ 

on the first day of April, A. D. 1902, find which I am by law required to Hat; that the numbers, quantity, quality and amount of each item so 
listed are correctly stated; that the values of the several items of property, aa by me stated (in culuom No. 2), are t be full fair cash values of the same, 
as I verily believe; that I have stated the full amount of my moneys and of my credits (less deductions autliorized by law), and that I have correctly 
stated the full fair cash values, and the face values, of all bonds, stocks and sharea of capital stock in companies or associations not incorporated by 
the laws of this State, by me owned or controlled. 



t Approved Feb. 25, ] 



Subscribed and e 



AN ASSESSMENT BLANK 



§ i7S] Assessment. 391 

ill such cases assessors commonly estimate the amount of per- 
sonal property. In some states there is a penalty for failure 
to make return ; sometimes assessors are authorized to guess 
at the amount of property, and then to double their guess for 
the schedule. In either case the tax-payer feels no responsi- 
bility until the assessment reaches what he thinks an unreason- 
able point, when he usually enters protest ; hence it is not 
uncommon to keep raising the assessment of a man until he 
" squeals." 

The next great difficulty is properly to assess the value of 
property when discovered. Real estate is subject to great 
fluctuations both down and up : prosperous farms in New 
England have been abandoned ; city property in Chicago 
may go up from ^loo to ^1,000,000 an acre, but it is also 
subject to depreciation by movements of trade and fashion. 
Who shall estimate the changes of value ? The usual officials 
are the assessors of the towns or counties or cities. In 
most parts of the United States the assessorships are elec- 
tive offices, with tenures of one year, or at best three years, so 
that inexperienced men get in ; and the most skilful assessors 
will make mistakes. In some large cities, notably Chicago, 
the variations in real estate are often corruptly affected : some- 
times a wealthy holder of real estate pays an agent a fixed 
sum per year to keep his assessment down. Everywhere the 
small man, the owner of a little home, the farmer with a defi- 
nite number of acres, is likely to be relatively more heavily 
taxed than the wealthy man. 

Real estate is taxed where it lies ; but it is becoming more 
common for wealthy holders of stocks and bonds to diminish 
their taxes by acquiring residence where taxes are low, in 
country houses or estates. In Massachusetts, taxes are assessed 
on the first day of May, hence many people go away for the 
summer on the 30th of April. Another method of dodging 
personal taxes is by making temporary investments in govern- 
ment bonds, and then selling them out after the assessment 
has been made ; or by putting property into the hands of 



392 Taxation. [§ 175 

trustees resident in other states under a low rate of taxation ; 
or, more frequently, by simply ignoring the whole subject. 

The usual principle of assessment is that property shall be 
estimated at what it would bring in cash on a forced sale, which 
is commonly from one third to three fourths of the selling 
value which the owner would put upon it ; but in many places 
the assessed value is very near the purchase price of new 
property. Inasmuch as many investors are glad to get 3 per 
cent net on investments, a tax of 2 per cent or 2!- per cent 
or 3 per cent on actual values must in the long run ruin the 
owners, and thus destroy taxable values and deprive the com- 
munity of one of the main incentives to saving. 

Ohio in 1885 enacted a system of tax inquisition which 
authorized two brothers to discover, in any way that they 
could, property which had escaped a sufficient assessment, they 
to have one quarter of all that they brought into the state 
treasury. This extraordinary system resulted in the discovery 
of some hundreds of thousands of dollars' worth of taxes that 
had been overlooked ; but it was widely believed that many 
delinquents came to terms by paying the inquisitors lump 
sums which did not get into the treasury. 

Small amounts of personal property are usually not taxable, 
and certain property owners are legally exempt from all taxes. 
In most states the real estate belonging to religious, educa- 
tional, and charitable institutions is free of tax ; and in some 
states invested funds belonging to such corporations are ex- 
empt. This is not a universal principle : in California all the 
colleges except the State University and Stanford University 
are or may be taxed ; in New Hampshire church buildings 
worth more than ^10,000 are taxed. In some university 
cities, such as Ithaca, New Haven, and Cambridge, the amount 
of real estate thus exempt is considerable, and there is jealousy 
of the institutions of learning because they have the free bene- 
fit of streets and of police and fire protection. In Maine, the 
state appropriates certain sums to the towns in which colleges 
are situated, in recognition of this supposed loss. In Mas- 



§ 175] Collection. 393 

sachusetts, the 194 towns which have no colleges show little 
disposition to tax themselves more highly in order to relieve 
the 6 unfortunate places which have colleges in their midst. 

The work of assessors is entered upon a book commonly 
known as the "tax-duplicate," which should show not only the 
taxed property but also the exempted property. The rate of 
taxation is found by dividing the amount necessary to raise by 
the total of assessable property. There may be two, or even 
three or four, kinds of taxes in the duplicate. The state tax is 
commonly not more than ^ per cent to ^ per cent on the 
assessed valuation ; the town or city tax in some communities 
is as much as 2^ per cent on the valuation ; in addition, there 
may be county taxes, school taxes, and special assessments 
for sewers, waterworks, and other improvements. 

A peculiar form of tax is the so-called " betterment tax." 
If a new street is laid out, for instance, the real estate in the 
neighborhood may have assessed upon it a part of the cost in 
proportion to the supposed benefit. These sums are not 
strictly taxes, but for convenience are assessed and paid with 
the real taxes. 

The ordinary method is to. have all these taxes combined in 
one annual bill, which is payable in either one or two instal- 
ments. This combined system sometimes makes very high 
rates of taxes: in Cleveland, for instance, in 1901, the tax 
rate was 3 per cent ; in Boston a total of i .6 per cent was 
thought extravagant ; and in some New England country 
towns the rate was as low as ^ per cent, or ^5 on the 
thousand. 

When tax bills are rendered, the next difficulty is to collect 
them. If proper care is taken, land taxes will be collected, 
through the wholesome system which makes taxes a first lien 
upon real estate, supplemented in most states by charges for 
interest after fixed days. Personal property, however, may 
change hands or be taken out of the state before any tax is 
collected ; and, unless the tax-payer is also a real-estate 
owner, he may move away and cannot be found. Delinquent 



394 Taxation. • [§176 

taxes, therefore, accumulate wherever much reliance is placed 
upon personal taxes; and in some places officials let them 
run because they get special fees for the collection of de- 
linquencies. 

License taxes are paid at the time the licenses are taken 
out, and those who neglect this form of tax are subject to 
arrest for attempting to carry on a trade without the requisite 
permission. Federal tonnage taxes are laid on vessels in 
harbor, which cannot legally leave port till the taxes are 
paid. The direct tax on the states proved very slow of 
collection, and arrears kept dropping in for years after the 
tax had ceased. 

The most serious defects in the American tax system are as 
follows:- — (i) The reliance on personal taxes, which never 
can be properly and impartially assessed. In repeated in- 
stances, a personal estate assessed at $1,000,000 or $2,000,000 
has proved on the death of the holder to be subject to a suc- 
cession tax on $20,000,000 or $30,000,000. (2) The in- 
equality of assessment, which results partly from lack of a 
proper system of state assessors not subject to local influence, 
and partly from the inherent difficulty of knowing the real 
value of changeable property. (3) The multiplicity of state 
and local taxes, with the result that some callings and indi- 
viduals carry disproportionate loads of tax. The fair and 
thorough collection of taxes is always easier in the so-called 
" indirect " taxes on consumption. 

176. History of the Tariff. 

Two forms of indirect tax, import duties and internal 
revenue, are the main sources of federal income. The import 
duties have been the more productive, and are also impor- 
tant because they involve protection to domestic industries. 
Within the colonies, small duties on imports were laid by the 
British government, and somewhat larger duties were laid by 
the colonies themselves. Immediately after the Revolution 
the states began to lay import duties each for itself; and two 



§ 176] History of the Tariff. 395 

constitutional amendments to the Articles of Confederation, 
intended to give Congress also power to lay light duties for 
national purposes, failed of ratification. Between 1783 and 
1788 three states, Massachusetts, New York, and Pennsylva- 
nia, framed general tariffs intended to discriminate against the 
products not only of foreign countries but of other states. 
The result was confusion and interstate jealousy. 

The Federal Convention in 1787 completely withdrew from 
the states all control over import duties, except over inspection 
duties levied with the consent of Congress. From the begin- 
ning it was expected that this exclusive power of taxation 
would furnish the United States with the greater part of its 
revenue, and that expectation has been justified. In the first 
full year, 1792, the customs produced $3,500,000; in 1808, 
$16,000,000 ; in 18 16, just after the War of 18 12, $36,000,000, 
a figure which was not reached again till 1850; in 1866 the 
war tariff produced $179,000,000; in 1902 the customs paid 
$254,000,000, the highest amount in the whole history of the 
country in, any one year. 

Customs tariffs are made by acts of Congress, although 
they may be modified by treaties duly ratified by a two-thirds 
vote of the Senate. Scores of acts have been passed on the 
assessment and collection of tariff duties and the organization 
of the customs service; but the so-called "tariff acts" have 
been those which involved a complete revision of the previous 
classification and rates. The first of these statutes was the 
act of 1789, which was intended to be protective, although 
the highest rate of duty was not above 15 per cent. In 181 6 
a distinctly protective tariff was set up, intended to sustain the 
young manufactures, especially of cotton and wool. In 1824 
the duties were somewhat increased. In 1828, under the so- 
called " tariff of abominations " the duties were raised to a 
hitherto unexampled height, reaching in some cases 45 per 
cent. In 1832 duties were somewhat reduced, but the tariff 
system was continued. This led to the Nullification contro- 
versy with South Carolina, and in 1833 the Compromise 



39<^ 



Taxation. [§ 176 



Tariff provided for the gradual reduction of duties to a 20 per 
cent basis. In 1842 the tariff was increased for revenue pur- 
poses. In 1846 the lowest scale of duties was adopted that 
had been known since 1816, and these duties were a little 
lowered under a revision of 1857. Then set in a current of 
protection, resulting in the tariff of i86x, repeatedly modi- 
fied by later war duties; gradually after 1866 many parts of 
the war tariff were struck off. In 1883 there was a general 
revision of the tariff, which was intended to lower the duties, 
but really raised them. In 1890 the McKinley Tariff raised 
duties to the highest figure experienced up to that time. In 
1894 the Wilson- Gorman Tariff, while still highly protective, 
considerably reduced duties. In 1897 the Dingley Tariff again 
increased duties, in many cases above the McKinley rate. 

It is difficult to know precisely what the protective effect of 
a tariff may be, because all the recent tariffs include many 
compound duties, — that is, duties made up in part of a 
specified rate (so much a pound or a yard), and in part of an 
ad valorem rate (so much on each dollar's worth of goods) . 
For instance, the Dingley tariff on velvets is ^1.50 per pound, 
plus 15 per cent ad valorem; on clothing, 44 cents per 
pound, plus 60 per cent ad valorem; on hats, from $2 to 
$'] per dozen, according to quality, plus 20 per cent ad 
valorem. Leaving out of account the free list, and compar- 
ing the receipts from duties with the total value of dutiable 
imports, the average rate of duty in 1841 was about 23 per 
cent; in 1847, 22^ per cent; in i860, 19 per cent; in 1868, 
50 per cent; in 1882, 44 per cent; in 1891, 47 per cent; in 
1 90 1, 50 per cent. These average figures are much under 
some rates of duty : on carpets the present duties are about 
80 percent; on blankets, about 100 percent; on potatoes, 
about 70 per cent. Many duties are so high as to prevent 
importation altogether, so that there are no figures from which 
to calculate the effect. 

No act is more difficult to draw up than a tariff, because 
of the great number of interests affected. Until about 1846 



§ 176] History of the Tariff. 397 

the tariffs were usually made by special committees ; there- 
after by standing committees, in which the minorities were 
represented. The tariff of 1883 was framed by a special 
commission, but was very much altered as it went through the 
process of enactment. Since that time the tariffs have been 
made by the majority members of the Ways and Means 
Committee without consultation with the minority members, 
and usually take the name of the chairmen of that committee, 
as the McKinley Tariff, the Wilson Tariff. Sometimes, while 
the Ways and Means Committee is at work, the Senate man- 
agers also prepare a bill, to be substituted when the House 
bill appears. The committees of both houses commonly 
hold public hearings, and also confer with representatives 
of the interests affected ; and in some cases manufacturers 
prepare parts of the text of the bill, which are afterwards 
incorporated. Consumers and importers are usually not en- 
couraged to appear before committees. 

On the three last general tariffs of 1890, 1894, and 1897, 
there was little genuine debate in the House. Hundreds of 
amendments were filed, but no vote could be reached upon 
them, because a tariff is a delicate adjustment between con- 
flicting interests, and to strike out a duty here and add 
another there may raise up unexpected elements of opposition. 
The Senate cuts and slashes the House tariff bill, usually in the 
direction of increase of duties. The differences between the 
two houses are then submitted to a conference committee, 
and that body of six men practically frames the final tariff, 
often inserting items which have been approved by neither 
house. The work of the conference committee is then accepted 
by both houses, and thus a new tariff comes into being. 

No tariff is long satisfactory, even to its friends : changes in 
the methods of doing business alter the effect of the act ; 
and the tariff cannot make everybody prosperous. For in- 
stance, the discovery of a new process for making steel in 
the sixties revolutionized the making of rails and structural 
iron, so that the old tariff did not correspond to the situation. 



598 



Taxation. 



[§ 177 



There is no magical power in a tariff to compel buyers to pur- 
chase, and the high rate of duty which cuts off the importation 
of a foreign article may raise the price to such a point that 
consumers find a substitute : thus, the very high rate on 
woollen cloths since 1890 has led to a much wider use of 
cheap woollens with admixture of cotton and shoddy. Hence, 
as soon as a tariff is fairly passed, appeals are made to modify 
it, not only from those who wish to reduce the rates, but from 
the protected manufacturers who find themselves disappointed. 
Since 1883, Congress has been chary of tariff bills dealing 
with partial fields, because to alter one part of the tariff may 
bring on a general tariff discussion. 

The following table shows the value of some of the principal 
articles imported during the fiscal year ending June 30, 1901, 
the duty on them, and the percentage of duty, arranged in 
order of magnitude of the duty collected : 



Article. 



Sugar and molasses 

Cotton manufactures 

Wool and manufactures of . . . 
Tobacco and manufactures of . 

Silk manufactures 

Fibres and manufactures of . . 

Liquors 

Iron and steel and manufactures of 
Leathers and manufactures of . . 

Hides of cattle 

Jewelry and precious stones 



Value. 



$87,004,000 
39,774,000 
30,727,000 
15,056,000 
26,836.000 
34,637,000 
13,028,000 
18,319,000 
11,682,000 
14,872,000 
16,490,000 



Amount 
of duty. 



563,022,000 
21,827,000 

21,575.000 
16,656,000 
14,246,000 
12,908,000 
9,12 1, 000 
6,988,000 
4,104,000 
2,231,000 
2,143,000 



Per cent 
of duty. 



72 
55 
70 
no 
53 
37 
70 

38 
35 
15 
13 



177. Administration of the Tariff. 

In practice, the workings of a tariff depend very much on 
its administrative features, which come too little into public 
attention. At the head of the system is the secretary of the 
treasury, who, more than any other member of the cabinet, is 
subject to definite and specific acts of Congress. One of the 
assistant secretaries is in general charge of the customs depart- 
ment. The whole country is divided into about 120 collec- 
tion districts, in each of which there is a collector ; some of 



§177] Administration of the Tariff. 399 

them have surveyors, and 6 have each a third official, known 
as the " naval officer," although he is simply the head of the 
accounting department. Subordinate to the collector are the 
surveyor, the appraisers, and a staff of clerks, examiners, in- 
sjDectors, watchmen, storekeepers, and the like. 

The 120 districts differ much in the importance of their 
business. The port of New York receives about two thirds 
of all the imports, and the ports of Boston, New York, Phila- 
delphia, Baltimore, New Orleans, and San Francisco do about 
nine tenths of all the business. The port of Annapolis, Mary- 
land, in 1 89 1 collected ^43.50, at an expense of about $1,000 ; 
the port of Burlington, New Jersey, collected $1.25, at a cost 
of about ^200 ; the port of Cherry Stone, Virginia, collected 
nothing at all, at a cost of over $2,000. Such small districts 
ought to be consolidated with the neighboring districts ; but it 
is difficult to bring about the discontinuance of a United States 
office. In the large ports the collectors are paid by salary, 
the highest being $12,000 to the collector of New York; in 
the small districts, they have fees and small salaries. 

Two systems of levying duties have prevailed from the 
beginning of the government, — the specific (so much a 
pound, yard, or dozen), and the ad valorem (so much on 
each dollar's worth of goods). The advantage of the specific 
system is that it is simple and easily administered : you have 
but to weigh and count and your task is done. On the other 
hand, the specific duty always rises as goods become cheaper : 
a duty of $6 per ton on steel rails would be about 15 per cent 
when rails were $40 a ton, but it would be 30 per cent when 
they fell to $20 a ton. 

The ad valorem duty, while more stable, is a constant in- 
citement to fraud : if the dutiable value can be understated, 
the duty is lowered by that much. Even where there is no 
fraud, it is customary for heavy importers to have houses on 
both sides of the Atlantic : Jonas Brothers in Nuremberg ship 
toys to Jonas Brothers in New York, and make the invoices on 
which values are calculated, without including the profit. 



400 Taxation. [§ 177 

To counteract this tendency Congress has made many stat- 
utes, the most effective of which was passed October i, 1890, 
separately from, though during the same session as, the Mc- 
Kinley Tariff, and amended in 1897 ; it is known as the 
Administrative Tariff Bill. This act provides that goods must 
be billed at the "customary market rates" in the place where 
they are produced or ordinarily sold abroad, and that the 
invoices must be certified by an American consul. Such cer- 
tification, long a part of the system, is almost always a matter 
of form, and does not protect the government. Every vessel 
arriving in an American port must have a " manifest," showing 
every article of the cargo ; and the importer must send to the 
government duplicates of the invoices for his goods. It then 
falls to the appraiser's office in each port to examine the 
goods, to see that they correspond with the invoices in quan- 
tity and quality, and that they are stated at their true values. 

The appraiser's work is the most delicate in the whole sys- 
tem. By the act of 1890 was created a body of general 
appraisers, drawing salaries of ^7,000 a year. A board made 
up of three of these appraisers has a final decision on the 
value of imported goods : from them no appeal can be taken, 
either to the secretary of the treasury or to the courts. Next 
comes the question in what category of the tariff act the goods 
shall be placed. Notwithstanding the hundreds of items in 
tariff acts, articles are frequently imported which are not dis- 
tinctly mentioned in them. What is a flying machine, for 
instance ? Is it personal baggage, or a carriage or a tool of 
trade ? or is it a manufacture of steel, or a manufacture com- 
posed partly of steel and partly of silk ? Such questions are 
decided by a board of three of the appraisers, but with an 
appeal to the courts. Importers frequently pay duties under 
protest, and bring suit against the government for refunds, 
on the ground of wrong classification ; they have sometimes 
recovered millions of dollars by such suits. 

Passengers arriving at a port are entitled to carry their 
personal possessions through the custom-house by a much 



§ 178] Appraisal. 401 

shorter and more expeditious process. Before landing, the 
passenger makes a declaration of the dutiable goods in his 
possession ; on reaching the docks his trunks are examined, 
and he pays duty on what he has declared ; if other dutiable 
goods are found, they may be seized if there seems to have 
been an attempt to smuggle them, or he simply pays the duty. 
There are many annoyances incident to this examination, and 
many charges that inspectors accept bribes for passing bag- 
gage. For many years passengers were allowed to bring with 
them wearing-apparel " appropriate for the purposes of their 
journey and present comfort and convenience " ; by the 
Dingley Act of 1897 the value of such clothing is limited to 
^100 in case of returning residents of the United States. 
There is no reason why passengers should have any greater 
immunity than other importers ; and the Treasury has by 
recent orders attempted to put an end to evasions and fraud, 
by holding that the ^100 worth of free goods may include 
small purchases other than clothing ; those orders, however, 
have been held invalid by a recent decision of the Board of 
General Appraisers. 

178. Excise and Internal Revenue. 

In most governments of the world, malt and spirituous 
liquors and tobacco are among the important objects of taxa- 
tion, because they are abundant, widely diffused, easy to reach, 
and are either counted among luxuries or discouraged as harm- 
ful. Imported wines and liquors of high cost are also subject 
to tax as luxuries used chiefly by the rich, and are productive 
of large revenue ; hence most tariffs, among them that of the 
United States, have high duties on the importation of alcoholic 
beverages and tobacco. 

The actual cost of crude spirits, especially with modern 
scientific apparatus,. is not more than 25 cents a gallon ; peach 
brandy, apple-jack, and rough corn v^^hiskey may easily be 
manufactured by farmers and others with inexpensive appa- 
ratus, and were so manufactured in considerable quantities in 

26 



402 Taxation. [§ 178 

colonial times. What more apt and convenient source of 
taxation than on the manufacture and sale of such liquors, 
and of the milder malt liquors and wines? During the Con- 
federation, several states, especially Pennsylvania, laid such 
a tax. 

By the constitution, Congress had specific power to lay 
"excises," and it was part of the financial scheme of Alexan- 
der Hamilton to frame a whiskey tax for federal purposes. 
By act of March 3, 1791, the first federal excise was laid, in 
the form of a tax of from 9 to 30 cents a gallon on the manu- 
facture of distilled liquors, or a yearly tax of 60 cents per 
gallon capacity on small country stills. This tax was very 
unpopular, and required disagreeable methods of collection ; 
and it cost about one fifth of its gross amount to collect it. 
In 1794 popular opposition in Western Pennsylvania led to 
the so-called "Whiskey Rebellion." 

The tax was never so productive as had been hoped, 
although in 1800 it brought in 1 1,000, 000. Jefferson's first 
Congress repealed it in 1802. In 18 13 it was revived, to- 
gether with a license tax on retail dealers ; and it produced 
^15,000,000 during the four years that it was levied. In 
1862 it was a third time introduced, and has ever since been 
a part of the revenue system. 

The excise has not been repealed, both because it is pro- 
ductive and because it is evident that repeal would so cheapen 
liquor as greatly to increase its use. Since 1890 it has almost 
equalled the receipts from customs ; and during the three 
fiscal years of the Spanish War tax, 1 899-1 901, it averaged 
about ^300,000,000, or ^70,000,000 a year more than the 
customs; of this amount $108,000,000 came from spirits, 
$58,000,000 from tobacco, $73,000,000 from fermented liquors. 
In 1 86 1 it cost about 24 cents a gallon to make untaxed 
whiskey; in 1865 the tax was $2 a gallon, producing about 
$16,000,000; in 1868 the duty was lowered to 50 cents a 
gallon, and in two years the proceeds rose to $55,000,000. 
The reason was that the high duty gave an impetus to illicit 



§ 178] Excise and Internal Revenue. 403 

and fraudulent distillation : even under the present low duty 
there are numberless stills in the mountain regions of the 
South, where " moonshine whiskey " is made. At present 
the rate of tax on beer is ^i.oo per barrel; on spirits, i^i.io 
per gallon ; on prepared tobacco, 6 cents per pound ; and on 
cigars and cigarettes, 54 cents to ^3.00 per thousand. 

Classed in the government reports with internal revenue 
are various other forms of taxes. In 1794 Congress laid a 
carriage tax of from $2 to ^15 ; and in the case of Hylton v. 
United States the Supreme Court held that the tax was con- 
stitutional, because an indirect tax. In the same year taxes 
were laid on the manufacture of sugar, snuff, and on retail 
sales of spirituous liquor. In 1798 began stamp taxes on legal 
instruments. All these taxes were repealed in 1802, but 
nearly all of them were again imposed in 1813, ceased in 
181 7, and were laid for the third time in 1862. By a series 
of acts during the Civil War, Congress tried to reach every 
kind of manufacture and of trade : licenses were required for 
all sorts of pursuits ; a stamp tax was laid on almost every 
written evidence of commercial transaction ; and these taxes 
were especially productive in the two or three years after the 
war closed. Gradually most of such taxes were removed : 
the two-cent duty on bank checks was repealed in 1883, but 
four years later a new form of tax was laid on the production 
of oleomargarine. In 1898, when the Spanish War broke out, 
many-of these taxes were again imposed, including the tax on 
bank checks; but in 1 901-1902 all the stamp duties and 
other war taxes were withdrawn. 

Since the Civil War, the normal national revenue in the 
United States has been made up of about one half customs 
receipts and one half internal taxes on alcoholic beverages 
and tobacco. In time of war or other financial stress, the 
government resorts to a great variety of manufacturing, license, 
and stamp taxes ; but people do not like them because they 
are an inconvenience as well as a money sacrifice, and Con- 
gress hastens to withdraw them as soon as possible. 



404 Taxation. [§ 179 

An additional tax is placed upon the liquor business by 
United States licenses, which are required from both wholesale 
and retail dealers, and range from $200 to $20 a year. Even 
where states prohibit the sale of liquor altogether, dealers take 
out United States licenses. In most states there are likewise 
state or local taxes on all dealers, such annual taxes varying 
from a few dollars up to ^2,500 in New York City. Some- 
times these taxes are assigned to the city government, and 
form a considerable item in the year's receipts ; but no Amer- 
ican state has gone to the length of the Swiss constitution, 
which provides for a liquor tax, a part of the proceeds of 
which shall be spent in combating the evils of intemperance. 

179. Amount and Incidence of Taxation. 

Although the kinds of taxation and the methods of their 
distribution much affect the welfare and productiveness of 
the country, and although plenty of people find it hard to 
raise the money to pay taxes, yet the United States is by far 
the lightest-taxed of all great countries. One reason is that 
almost the whole burden of taxation is indirect : the happy 
possessor of a new suit of clothes, the laborer puffing at his 
pipe, is paying a part of the tax in the higher price on his 
purchase. Yet the total burden of national expenditures in 
1901 was only ^6.56 per head of the population, while the 
burden in France was ^17 per head; in England, ^19.18; in 
Germany, ^12. 

This comparison is misleading, because in those three coun- 
tries a large part of the local expenditures are borne out of 
the national treasury. For an accurate idea of the burden of 
taxation in the United States, we must add the taxes laid 
by states, counties, cities, boroughs, towns, school districts, 
sewer districts, and other subdivisions. This difficult task, 
involving the assembling of the reports of forty-five states, 
four territories, 1,000 organized cities and villages, perhaps 
2,800 counties, and several thousand towns, is being done for 
a supplementary volume of the last census. 



§ 179] Amount and Incidence. 405 

The state tax is almost everywhere the lightest item, often 
not more than a dollar or two per head of the population. 
In 1 901 the New York State tax was about 94 cents per 
head : the South Carolina tax about 70 cents. Local taxes 
vary enormously : Boston, with 600,000 people, pays about 
^20,000,000 of annual tax, an average of about I35 per head ; 
Greater New York, with about 3,500,000, pays ^100,000,000, 
or $30 per head ; in some of the Southern and Southwestern 
states, the local tax is not more than half a dollar a head 
annually. Mr. Edward Atkinson estimates that the average 
state and local tax is about equal to the national tax, making 
a total average tax of about ^14 per head of the population. 
Comparing this with the taxes of England, Germany, and 
France, it will be seen that our total governmental burden 
does not equal the average of national taxation alone in these 
European states. At the same time the United States is a 
very prosperous nation, with an annual product twice as great 
per capita as in Germany, and the tax does not take up more 
than one fourth of the annual national savings ; while in some 
parts of Italy the tax-gatherer gets in cash more than a fourth 
of the gross money income, to say nothing of savings. This 
comparative lightness of taxation is one of the reasons for the 
great commercial activity in America. 

The question just who pays the taxes in the long run is puz ■ 
zling to skilled economists. Plainly, the owner of rented land 
and buildings expects his rent to cover both interest and taxes ; 
so that the occupant who owns no landed property cannot 
help paying a tax on land. The importer of merchandise and 
the brewer of beer redistribute the taxes which they pay, by 
adding to their selling price. The holder of a mortgage 
covenants with the mortgagee to pay the tax, or else he adds 
enough to the rate of interest to make himself good. In 
the long run, taxes are widely distributed, but are apt to fall 
with most severity upon the poorer part of the population : 
(i) because, if they have taxable property, they cannot hide 
their little house, work-animals, or savings-bank deposits; 



4o6 Taxation. [§ 179 

(2) because they pay most of the tax unconsciously through 
increased prices; (3) because there are so many more of 
them that their gross burden is vastly greater than that of 
well-to-do people. The inequality of taxation is enhanced 
by the greater ease with which the rich man may change his 
residence or form of investment, to avoid heavy taxation. A 
large part of the national taxes fall on the middle classes in 
America, — on professional men and women, teachers, and 
the higher artisans. A family with an income of ^2,000 a 
year, paying taxes on a house assessed at ^5,000, pays from 
$50 to $150 a year outright on real estate, and anywhere from 
^100 to $300 by the indirect effect of local and national taxes. 
Taxation is the price which civilized communities pay for 
the opportunity of remaining civilized. If the whole twelve 
or fifteen hundred millions of dollars raised annually in taxes in 
the United States were every year thrown into the sea, the 
country could well bear the loss, if it still had peace and good 
order : a year of civil war would cost more than ten years 
of peace taxation. A large part of the money from taxes 
goes into direct protection of society, — into police, firemen, 
militia, the army and navy ; a part into indirect protection, 
such as education and the improvement of the community. 
A part goes into permanent buildings and improvements ; a 
large part goes into salaries of people who keep the accounts ; 
and a considerable fraction, probably from one third to one 
fourth of the whole amount, goes without any return, because 
spent injudiciously or extravagantly, — a waste which is so 
much subtracted from the productive powers of the nation. 
Nevertheless, as yet only a small fraction of the total earnings, 
or even of the total savings, of the people is absorbed in 
government expenditures which confer no benefit on the 
community. 



CHAPTER XXII. 

PUBLIC FINANCE. 

180. References. 

Bibliography : D. R. Dewey, Financial Hist, of the U. S. (Am. Citi- 
zen Series, 1902), Suggestions, and §§ 26, 2)Z'< 53> 126, 142, 203; A. B. 
Hart, Manual (1908), §§ 117, 118, 148, 220, 221 ; E. McClain, Constitu- 
tional Lazu (1905), § 80; Channing and Hart, Gicide (1896), §§ 158, 174, 
183, 185, 195, 211; Brookings and Ringwalt, Briefs for Debate (1896), 
Nos. 34, 35. See also references in ch. xxi above. 

Financial Administration: E. McClain, Coiistitutional Law (1905), 
§§ 81, 82; A. B. Hart, National Ideals {Am. Nation, XXVI, 1907), ch. 
XV ; C. J. Bullock, Finances of the U. S. (1895), part ii ; F. J. Goodnow, 
Administrative Law (1905), 449-457. J. A. Fairlie, Municipal Adminis- 
tration (1901), chs. xiii, XV, xvi; J. H. Hollander, Studies in State Taxa- 
tion (1900); D. Kinley, Independent Treasury (1893); H- C. Adams, 
Science of Finance (1899), P^""' ij E. G. Bourne, Smpliis Revenue {1885) ; 
F. R. Clow, Comparative Study of the Administration of City Finances 
(1901) ; W. M. Daniels, Elemoits of Public Finance (1899) ; J. B. Phillips, 
Methods of Keeping the Public Money (1900) ; C. F. Dunbar, Some Prece- 
dents followed by Hamilton {Quar. Jour^tal of Economics, III, 32—59, 
1888) ; H. C. Adams, Am. War Financiering {Pol. Sci. Qjcar., I, 349- 
385, 1886) ; R. Ogden, Rationale of Congressional Extravagance {Yale Rev., 
VI, 37-49, 1897) ; E. I. Renick and N. H. Thompson, National Expendi- 
tures {Pol. Sci. Qiiar., VI, 248-281; VII, 46S-482, 1891, 1892); W. G. 
Sixxxaxier, Financier and Fi7iances of the Rcvohction (2 vols., 1891); H. C. 
Lodge, Alexander Hamilton (1900), chs. v, vi; J. A. Stevens, Albert 
Gallatin (1900), ch. vi; W. G. Sumner, Andrew Jackson (1900), chs. viii, 
X, xi; A. B. Hart, Salmon P. Chase (1900), chs. ix, xi, xv; John Sherman, 
Recollections (2 vols., 1895), chs. xxiv-xxvii, xxx ; Edward Atkinson, Cost 
of War (1902); P. Pulsifer, Compilation of Annual Appropriation Acts 
{Senate Doctiments, 58 Cong., 3 sess.. No. 44, 1904). 

Public Debts: H. C. Adams, Public Debts (1887); A. D. Noyes, 
Thirty Years of Am. Fijiance (1898) ; E. A. Ross, Sinking Funds (1892) ; 
J. W.Kearny, Sketch of American Finances (1887); W. F. DeKnight, 
History of the Currency and Loans (2d ed., 1900) ; W. A. Scott, Repudia- 

407 



4o8 Public Finance. [§ i8i 

tion of State Debts (1893) ; J. A. Fairlie, Municipal Administration (1901), 
ch. xiv ; H, C. Adams, Science of Finance (1899), Book III ; U. S. Census 
Bureau, Special Report, on Wealth, Debt, and Taxation (1907). 

181. Public Property. 

Although the governments in the United States are the 
heaviest real-estate owners, their holdings are with few excep- 
tions unproductive, and of course pay no taxes. The public 
lands are held only until somebody comes along who wants to 
buy them ; national, state, municipal, and local parks yield no 
revenue, and are a constant source of expense. Almost the 
only revenue-producing public properties are the docks in a 
few cities, and the water-works, gas-works, and electric sys-. 
tems of cities which own their own plants. State and national 
forests properly managed may also eventually become a source 
of moderate revenue. South Carolina has a state monopoly 
of the liquor business. 

Like a corporation, a prudent government must keep a 
working balance of money in hand. The United States has 
repeatedly seen that balance grow against its will, and various 
means have been adopted for getting it out of the vaults and 
into circulation. From 1791 to 1836 (with the exception of 
the years 181 1-1816), the national balances were deposited 
chiefly in the Bank of the United States; from 1833 to 1S41, 
in selected state banks; from 1841 to 1862, in the vaults of 
the government. Since 1862 some parts of the balance have 
been kept in national banks, the greater portion in the custody 
of the treasury. The highest annual accumulation of surplus 
was ^146,000,000 in 1882. Although political favor always 
plays some part in the selection of banks of deposit, it does 
not appear that any ofificer of the United States has ever prof- 
ited by placing public deposits. 

State, county, and municipal balances are, however, fre- 
quently deposited in banks, on an agreement that the treasurer 
or other custodian shall receive interest for his private profit; 
and heavy losses have many times occurred because the treas- 



§ i8i] Public Property. 409 

urer chose the bank that would promise large interest in- 
stead of large safety. If any advantage is to be got out of 
public deposits, it ought to go to the public ; state and county 
treasurers ought to have salaries adequate for their duties, so 
that there should be ' no excuse for this dangerous practice. 
Cases have been known where the school-teachers of a state 
went unpaid for months, in order that the state treasurer might 
draw interest on money that really belonged to them. 

The general government and the state governments always 
own considerable amounts of military and other materials and 
supplies ; and the federal government owns the ships of war, 
often costing millions of dollars each. Some cities own float- 
ing fire-engines, and transfer and ferry boats. The furniture 
of schoolhouses and other public buildings, and the fittings of 
state institutions, are either state or municipal property. The 
federal government has a searching system of record of its 
property, and loses comparatively little. States and munici- 
palities are more careless, especially in the sale of disused 
materials, and sometimes are subjected to gross frauds. An 
instance during the Spanish War was the sale, by some state 
officials, of military clothing belonging to the state for ^40,000, 
and its repurchase on state account for over ^100,000. The 
various governments frequently own working animals, from the 
army mule to the powerful fire-engine horse. 

A few cities have attempted to acquire the street-car lines 
within their borders ; and, although none have yet succeeded, 
the cities of Boston and New York have constructed costly 
subways, which remain the property of the city and are leased 
to operating companies. For nearly forty years the United 
States owned mortgages in certain Pacific railroads ; and many 
states in early days either built or took stock in canals and 
railroads, and a few relics of such ownership still exist. The 
United States is about to begin the construction of a canal 
across the American isthmus, which will remain national prop- 
erty. It has been too common for local governments of every 
kind — cities, towns, and counties — to give or lend money 



41 o Public Finance. [§182 

to railroads which were to run through their boundaries ; hence 
many of the state constitutions absolutely prohibit the use of 
public credit in any form for such enterprises. In 1873 Cin- 
cinnati got round a prohibition of this kind by building the 
Cincinnati Southern Railway, in which the municipaUty is the 
sole owner, at a prime cost of about ^19,000,000. 

182. Public Budgets. 

Three systems of public finance have prevailed in the history 
of the world : — 

(i) The Asiatic system, reaching from Babylonia down to 
modern Turkey : the government takes everything that it can 
lay its hands upon without crippling the country and leaving 
it unable to furnish taxes the next year; and the money is 
then all spent by somebody. 

(2) A method that is best exemplified by the English 
system : the chancellor of the exchequer calculates beforehand 
the necessary expenditures of the government, which are 
usually so steady that he can come very close to the actual sums ; 
he then calculates the revenue, and if it comes to less or more 
than the probable outgo, he adds to or diminishes a small elastic 
tax on incomes. This is the method universally adopted by cor- 
porations and private institutions which serve public purposes, 
and is substantially followed by American states and cities. 

(3) A method that proceeds from the other end on : it 
provides revenues without any special reference to the needs 
of the country, and then considers ways of spending money to 
balance those revenues. This system, almost unexampled in 
history, is followed by the federal government of the United 
States, and is one of the weakest parts of all American gov- 
ernment. It has arisen because the tariffs are framed with a 
view, not so much to stimulate imports and thus increase the 
revenues, as to reduce the import of dutiable goods for pro- 
tection to American industries. Every tariff from 1789 down 
has expected that many importations would continue, even 
under high rates of duty. The wealthy man who wants 



§ i82] Public Budgets. 411 

champagne or a modern picture or a London hat will have it 
no matter what the duty is ; and on more common articles 
the duty must leave some opportunity for importation, because 
a large customs revenue is essential to the government ; but 
nobody can ever predict beforehand just what the result of a 
new tariff will be, and customs receipts are subject to great 
variations according to the prosperity of the country. 

A panic invariably cuts down customs receipts : for example, 
in 1836 customs brought in ^23,000,000; in 1837, ^11,000,- 
000; in 1872, $216,000,000; in 1874, $163,000,000. The 
excise duties are much steadier, but still they vary unaccount- 
ably from year to year : they brought in $167,000,000 in 1893, 
and $147,000,000 in 1894. Furthermore, neither the cus- 
toms revenue nor the internal revenue is elastic, for neither 
can be altered without long-continued and violent political 
debates. Hence our national revenue is fluctuating, and bears 
but little direct relation to the needs of the government. 

Four times in its history has the United States accumulated 
a surplus out of taxes — in 1801-1808 to the amount of 
$43,000,000; in 1816-1819, about $34,000,000; in 1822- 
1836, about $139,000,000 ; in 1866-1893, about $1,881,000,- 
000. In every case except the year 1836 the balance went 
to reduce the public debt, or to provide a reserve to protect 
circulating forms of that debt. During all these periods of 
debt reduction, the government was hampered by the neces- 
sity of buying back its own bonds at a premium. 

The outgo of the government is affected whenever more 
money accumulates than is needed. The country in general 
does not like to see balances accumulate in the treasury; it 
therefore permitted the payment of $20,000,000 of direct tax 
back to the states in 189 1, favored the dependent and private 
pension bills in 1890, and in 1886 came near adopting a 
scheme for spending $77,000,000 on education in the states. 

In England the whole outgo of the government is combined 
in one statement, for which the chancellor of the exchequer 
and the whole ministry are responsible. In the United States 



412 Public Finance. [§182 

the secretary of the treasury makes estimates, but the actual 
expenditures are authorized by bills introduced by half a dozen 
different committees. Of late years the Speaker of the House 
has become an untitled chancellor of the exchequer, and in- 
sists that the total expenditures shall bear some relation to the 
money likely to be in hand. Leaving out of account special 
war expenditures, the national expenses were in the decade 
from 1880 to 1890 about ^250,000,000 a year, and in the 
next decade about ^350,000,000 a year. 

The whole budget system is much disturbed by the practice of 
borrowing for current expenses. In 1890 the national revenue 
was ^105,000,000 more than the ordinary expenses; in 1894 
it was $70,000,000 less than the ordinary expenses ; and in the 
six years 1 894-1 899 the government ran behind about ^280,- 
000,000. As Congress was unwilling to lay new taxes, there 
was no resource but to borrow money, although it is humiliating 
for a wealthy people not to pay its bills from year to year. 

The expenditures of the states are usually very definite, and 
do not vary seriously from one year to another. Interest and 
sinking-fund, support of public institutions and of the state 
civil service, additions to public buildings, state expenditure 
for education, — these are the chief outgoes. Heavy expendi- 
tures, such as the construction of a new state capitol, are 
ordinarily provided for by an issue of state debt. On the 
other hand, the occasional income of a state from fees, interest, 
licenses, and the like is easy to estimate ; corporation taxes 
and other large fixed taxes are tolerably steady ; and the com- 
mon method is to add all these items of revenue, and then 
to lay a special state tax on land sufficient to meet the balance. 
For instance, in 1895 the state of Massachusetts had a corpora- 
tion tax of $3,600,000, bank taxes of $2,000,000, a collateral 
legacy of $420,000, liquor licenses of about $700,000 ; various 
smaller items brought the amount up to $8,500,000, and the 
state then laid a land tax of $1,500,000. 

The state debts are almost always incurred for large and 
permanent improvements. The municipalities have a way of 



§182] Public Budgets. 413 

borrowing for the construction of new buildings ; this increases 
the interest charge, and eventually the city has to pay the 
principal out of taxes, as it might have done at first. It is 
therefore almost impossible to say off-hand whether a city is or 
is not raising every year money enough for its normal expen- 
ditures. Another difficulty, found only in state and local 
governments, is that the constitution frequently prescribes a 
maximum rate of taxation, but allows change of assessments ; 
hence, if a city must have more money, it is likely to screw 
up the valuation and thereby increase the taxes, though the 
apparent rate may be diminished. Greater New York in 1903 
raised the valuation from ^6,595,000,000 to ^9,176,000,000. 

BUDGET OF THE TREASURER OF PENNSYLVANIA FOR THE 
FISCAL YEAR 1901-1902. 
Revenue. Expenditures. 

Land $5^°°° Legislative department ... 1^19,250 

Tax on stock 5,991,000 Executive departments . . . 500,200 

Tax on receipts, incomes, and Executive boards 235,850 

premiums 1,839,000 Judiciary 742,900 

Tax on loans 1,350,000 Public printing 300,000 

Tax on personal property . . 700,000 Grounds and buildings . . . 69,700 

Tax on collateral inheritances . 1,150,000 New capitol 1,650,000 

Tax on writs, deeds, etc. . . 150,000 State library 23,675 

Licenses 2,336,800 Stationery and supplies . . . 175,000 

Fees and commissions . . . 201,000 Commissions 104,800 

Bonus on charters .... 700,000 Insane 1,059,542 

Interest and bond payment . 356,75° Penitentiaries and reformatories 383,286 

Miscellaneous 38,675 Charitable and other institu- 

Total $14,818,225 tions_ i,739,988 

Education 6,311,479 

Militia 387,500 

Purchase of forest reservation 150,000 

Bridges 200,000 

Interest and sinking fund . . 251,208 

Miscellaneous 57.600 

Total ^14,361,978 

Most of the municipalities follow the same business princi- 
ples. In their case, the occasional items are smaller; the 
greater part of the expenditures must be met by taxes ; and 
the rate of taxation is fixed every year, and easily compared 
with the rates of previous years. The tax-payer ordinarily 
pays little attention to the amount of the state tax, but is much 
alive to any sudden increase in his local tax. 



414 Public Finance. [§ 183 



BUDGET OF THE AUDITOR OF SAN FRANCISCO FOR THE 
FISCAL YEAR igoi-1902. 

Revenue. Expenditures. 

Fees and commissions . . . ^172,500 Legislative department . . . $271,800 

Fines 33, 5°° Executive department .... 269,820 

Licenses 470,000 Legal department 326,840 

State school money 675,000 Public works 924,594 

Collateral inheritances . . . 20,000 Police 817 278 

Rent 58,750 Public health 280,680 

Building permits ..... 25,000 Electricity 91,988 

Miscellaneous 20,350 Light for city purposes . . . 255,000 

Tax on real estate 3,117,600 Fire 777,000 

Tax on personal property . . 1,328,200 Water for city purposes . . . 100,000 

Elections 85,000 



Total $5,920,900 



Civil service 8,100 

Schools 1,200,000 

Public library 62,000 

Parks 285,000 

Interest and sinking fund . . . 25,000 

Total $5,780,100 



183. Public Expenditures. 

The expenditures of the various governments are regulated 
by a few practical principles. The first is summed up in the 
.term " control of the purse," which means that the appropria- 
tion of money for public purposes rightly belongs to the legis- 
lative department. This principle was developed in colonial 
times, and was one of the chief means by which the assemblies 
made head against the governors. The legislatures not only 
claimed the sole power of taxation within their colonies, but 
also the right to direct the purposes for which money should 
be spent, and to follow and control that expenditure in the 
hands of the colonial executive. 

The federal constitution distinctly states that no money shall 
be drawn from the treasury, except in consequence of appro- 
priations made by law. During the early years of the federal 
republic such appropriations were frequently made in lump 
sums, to be expended at the discretion of the heads of depart- 
ments. Gradually Congress came to itemize more and more 
minutely ; and at present the annual appropriation bills fix the 
number of clerks in each bureau and their salaries, and go into 



§ 183] Public Expenditures. 415 

such details as the following : " Improving Newtown Creek, 
^10,000; of which ^2,500 is to be expended on west branch, 
$2,500 on main branch, and balance on lower end." These 
appropriation bills, however, are not made up irrespectively 
of the executive. Every head of a department submits an 
elaborate estimate, based on statements made by various subor- 
dinates, of the sum necessary for each of the many branches of 
the service. There used to be a crabbed member of a com- 
mittee of Congress who invariably cut down a particular esti- 
mate by one half, and who learned after he had left Congress 
that the estimate submitted to him was always just twice what 
was desired. 

About one third of the expenditures of the federal govern- 
ment are "permanent" or "permanent specific" — that is, 
voted for a specific purpose without any limitation of time; 
the amount may be a definite one or such as may be found 
necessary for the object for which it is appropriated ; and it is 
payable out of any moneys in the treasury, unless otherwise 
ordered by an act of Congress. The ordinary annual appropri- 
ations are made for a specific purpose for liabilities incurred 
in the fiscal year for which they are appropriated. 

The expenditures of the United States are provided for by 
thirteen annual appropriation bills, — agriculture, army, con- 
sular and diplomatic, deficiency, District of Columbia, forti- 
fications, Indians, legislative, executive, and judicial, military 
academy, navy, pensions, post office, and sundry civil. The 
" legislative, executive, and judicial " bill provides for the gen- 
eral civil service, and for the support of Congress and the 
judiciary; it has crept up slowly from $500,000 in 1793 to 
$122,000,000 in 1 90 1. War expenses are continuous, but of 
course much greater when fighting is going on : about $1,000,- 
000 a year at first, they were $20,000,000 in 18 14, $35,000,- 
000 in 1847, and $1,030,000,000 in 1865 ; in the year 1899 
they were $229,000,000. Naval expenses were about $1,000,.- 
000 a year early in the nineteenth century; $122,000,000 in 
1865, and $15,000,000 in 1S88; in 1901, a year of peace, 



41 6 Public Finance. [§ 183 

they were ^60,000,000. The Indians receive about ^7,000,- 
000 a year. Pensions cost ^1,000,000 a year just before 
the Civil War, $27,000,000 in 1878, and in 1893 reached the 
high-water mark of $158,000,000, which is about double the 
total expense of the government in any year before the Civil 
War. Interest on the public debt cost from $1,000,000 to 
$3,000,000 a year in the decade before the Civil War, rose 
to $144,000,000 in 1867, and by reduction of the principal 
and refunding at low rates of interest has come down to 
$69,000,000. 

The control of the expenditures of the government is exer- 
cised through the Treasury Department, since warrants drawn 
for expenses in other departments come there for payment. 
The principal accounting officers are a comptroller, and six 
auditors, one for each of the principal departments. Since no 
account can be paid without their approval, they exercise the 
final right of deciding whether a given expenditure is covered 
by act of Congress, and whether money has been appropriated 
by Congress in a constitutional manner. In 1895 Comptroller 
Bowler refused to authorize payment of a bounty on beet sugar 
mider an act of 1890, on the ground that it was unconstitu- 
tional to pay bounties to producers ; whereupon suit was 
brought before the Supreme Court, which issued a mandamus 
compelling the payment of the money. The registrar of the 
treasury is a sort of book-keeper ; the treasurer is the custo- 
dian of the public funds. 

The methods of government bookkeeping are complicated, 
and it is difficult for federal officials to get a settlement of 
their accounts. If a linchpin is stolen out of a government 
wagon, a new one cannot be had unless some one will take 
oath that the old one was used up in the government service. 
In 1886 the government books showed nominal balances 
against John Adams for $13,000; against General Lafayette, 
$5,000; against Washington Irving, minister to Spain in 1847, 
three cents ; against William D. Howells, consul at Venice in 
1873, $24.75 '} against John Howard Payne (the author of 



§ 183] Public Expenditures. 417 

"Home Sweet Home "), consul at Tunis in 1853, ^205.92. 
Probably every one of these claims was oifset by payments for 
the government, and in many cases the government really 
owed the alleged debtor. Accounts with the states have often 
stood unsettled for many years : certain payments made by 
Massachusetts during the War of 181 2 remained unpaid till 
1 86 1. With this strict and remorseless bookkeeping it is 
often necessary to pass special relief bills in cases of hardship. 

The expenditures of the states are made in the same manner 
as those of the Union : money must be appropriated by the 
legislatures, and annual accounts of receipts and expenditures 
are published. The states, however, have many institutions 
(such as prisons and workhouses) which produce something, 
and which are sometimes allowed to retain the money and allow 
it in their accounts. A better system, which is gaining ground, 
is to have all receipts paid into the state treasury and to make 
appropriations large enough to cover the actual expenses. The 
same difficulty occurs with fees, which are common in national, 
municipal, and state service, and sometimes make large in- 
comes : the clerkship of the supreme court of a state, for 
instance, may be one of the best-paid offices in the state. 
The national government tends more and more to require that 
fees be turned into the treasury, and that an adequate salary 
be voted ; and there is room for reform in that direction in 
the states. 

The purposes of state expenditures are legion. The heavi- 
est is the payment of legislative, executive, and judicial salaries. 
Next comes the maintenance of state institutions, — prisons, 
insane hospitals, reform schools, normal schools, — and often 
a large part in the support of country schools. Another large 
item is the construction of ways of transportation : the state of 
New York has spent ^95,000,000 on canals; Massachusetts is 
now spending out of the state treasury about half a million 
a year on roads. The sums subscribed by states to canals and 
railroads are usually supplied by loans ; but the interest be- 
comes an annual charge, and eventually the bonds have to be 

27 



41 8 Public Finance. [§183 

paid. State bookkeeping is in most states less punctilious 
than at Washington, though there is commonly a state audi- 
tor, who supervises payments. In general the state legisla- 
tures do not go far into the details of appropriation bills : 
very frequently they appropriate lump sums, to be expended 
at the discretion of the trustees of institutions or of executive 
boards, who keep and file careful accounts. 

Expenditures of cities are in the main like those of states. 
First come the salaries of city officers of every kind, including 
the support of expensive police and fire departments. Cities 
have also the costly responsibility of keeping up the streets, 
an expense much increased by the careless American habit o.f 
freely granting permits to tear up pavements in order to lay 
pipes. Schools are a heavy item in city budgets. Parks and 
other pleasure grounds absorb a great deal of money. Most of 
the cities are in debt ; and the interest, with the sinking-fund to 
extinguish the principal, is a heavy charge. Public water and 
gas works and electric-light plants, even though productive, 
require large expenditures for extensions and interest. City 
bookkeeping is one of the matters that most need attention, 
and efforts are now making to induce states to agree on a 
common system of municipal accounting, which will make it 
possible to compare the different kinds of expenditure from 
year to year, and also to compare the expenses of one city 
with those of another. 

Counties and towns are less subject to extravagant expendi- 
ture than larger units of population, for they are more carefully 
watched.; but the erection of county buildings often costs 
much more than that of private buildings of the same size and 
character. One of the chief items for local expense through- 
out the country is schoolhouses : even very small communities 
often take pride in spending money for handsome school 
buildings. 

Throughout the Union the main difficulty with expendi- 
tures is a lack of one head in each community who shall be 
responsible for the outgoes of government. Money is appro- 



§184] State Debt. . 419 

priated by Congress, the legislatures, and city councils, each 
under the influence of various committees ; and there is not 
a sufficient check on extravagance. In this respect, however, 
the states, and still more the cities, are managed better than 
the national government. 

184, State Debt. 

The third great department of pubhc finance is public debt, 
which is too often treated as though it were a calamity. The 
foundation of modern national debts was an arrangement, in 
1694, between the English government and a new corporation 
called the Bank of England, by which, in return for large privi- 
leges, the bank advanced to the government ^1,200,000. 

The colonies often borrowed money of their own citizens in 
order to fit out military expeditions. The states did the same 
in the Revolution, and in 1789 over ^18,000,000 of state 
debt was outstanding. This sum was assumed by the United 
States, and for about thirty years thereafter the states had 
little or no debt. Then came the great era of canal-building, 
which involved all the states from New York to Virginia, 
and westward to Illinois. A little later, in the thirties and 
forties, came the building of railroads with state aid, caus- 
ing an immediate use for millions of dollars ; and at the same 
time a new supply of loans became available, because foreign 
capitalists were willing to advance large sums on the credit 
of the states. 

Matters went on flourishingly until the great panic of 1837, 
which instantly cut down the state revenues and for the time 
stopped the development of the West. Many of the states de- 
faulted on their bonds, among them Pennsylvania, a fact which 
led Sidney Smith, a holder of some of the bonds, to say that 
he never saw a Pennsylvanian without a desire to strip him of 
his coat and boots. Pennsylvania eventually paid up, but 
other states repudiated principal and interest. The whole 
transaction was much confused because in some cases the 
state issued bonds through railroad and banking corporations, 



420 . Public Finance. [§ 184 

which returned only a part of the proceeds : about ^14,000,- 
000, which had been lent the states in good faith, was an ab- 
solute loss to the capitalists. 

A second period of repudiation came during and after the 
Civil War. By the Fourteenth Amendment it was expressly 
declared that no state should pay any debt incurred in aid of 
rebellion against the United States ; hence all loans of the 
eleven seceded states incurred during the war became void. 
The ante-bellum debts were still valid, and the reconstructed 
governments of the Southern states at once proceeded to 
make new debts. In South Carolina the accounts were so 
loose that nobody ever knew whether the issue of bonds was 
$25,000,000 or $35,000,000; but $6,000,000 are known to 
have been put on the market without any authority of law. 
The debt of the state, which in 1861 was $4,000,000, in 187 1 
was stated at $29,000,000, of which about $18,000,000 was 
soon after repudiated. The state of Virginia was divided 
during the Civil War, and therefore the reconstructed state 
refused to hold itself responsible for more than one half the 
outstanding debt ; and of the remainder a considerable part 
was scaled. The Southern states, together with two Northern 
states, between 1865 and 1885 repudiated about $160,000,000, 
much of which had been contracted by state governments 
which did not really represent the tax-payers. 

The amount of outstanding state debts was made the sub- 
ject of inquiry by the census of 1890. Most public debts are 
slowly reduced by sinking-funds, accumulated to extinguish 
the debts when they mature. Deductuig the sinking-funds, 
the state debts in 1890 were $229,000,000, a decrease of 
$68,000,000 from 1880; they amounted to less than $4 per 
capita throughout the United States. As might be expected, 
the richest states had very little outstanding debt : in Rhode 
Island the debt was about 70 cents per capita ; in New York 
about 40 cents ; in Virginia, before the final settlement of the 
debt, about 20 cents. A large number of the states have only 
nominal debts for temporary purposes, and more than half of 
them are practically free from indebtedness. 



§ 185] Municipal Debt. 421 

The states, even those which once repudiated, are now able 
to borrow on very low terms. From 1830 to 1850 the states 
were the principal heavy borrowers ; now they compete with 
municipalities and corporations. A few state constitutions seek 
to limit state debts by provisions that they shall not exceed 
fixed amounts, ranging from ^50,000 in Michigan to ^1,000,- 
000 in Pennsylvania ; and that the creation of new debts must 
be ratified by popular vote. Apparently the present outstand- 
ing state debts are likely almost to disappear in the course of 
the next two or three decades. 

185. Municipal Debt. 

One reason why state debts diminish is that municipal and 
local debts constantly increase. All American cities are mak- 
ing large provisions for future generations : streets and bridges, 
sewers and waterworks, schoolhouses and other public build- 
ings, are intended to serve many generations. Since the con- 
struction of an immense water system like the New York 
City Croton Dam and Aqueduct costs as much as a whole 
year's taxes, it is reasonable that such improvements should be 
distributed among several generations of tax-payers. City 
governments frequently shrink from facing improvements 
which must be made year by year : hardly an American 
city undertakes to build out of taxes enough schoolhouses 
to seat the increasing numbers of children. Street paving 
is frequently covered by loans, although the pavement wears 
out and has to be renewed before the bonds are due. With 
few exceptions, however, the municipal debt represents perma- 
nent and valuable property necessary for the common weal. 

The total county debt in 1890 — principally for buildings — 
was $145,000,000; and, although this is only $2.30 per capita 
for the whole country, in many states it is a very heavy item : 
Montana, for instance, had in 1890 $2,000,000 of county 
debts, or $12 per capita. The county debts from 1880 to 1890 
increased by $20,000,000; but, as the creation of new counties 
slackens and the necessary buildings are constructed, it is 



42 2 Public Finance. [§ 185 

probable that the debts will diminish, especially since the 
counties in many states are now prohibited from incurring 
debt in aid of railroads. 

The school-district debt hardly exists in the Southern states, 
because there is no such administrative unit ; and the Southern 
county debts undoubtedly include items which in other states 
go to the school-district account. The total school -district 
debt in 1890 was ^37,000,000, more than twice as much as in 
1880 ; ^25,000,000 of this sum was outstanding in the North- 
central states, from Ohio to Minnesota and Kansas. The per 
capita school-district debt throughout the United States is 60 
cents, but in North Dakota it is ^5. This form of debt ought 
also to diminish when the country regions are properly sup- 
plied with schoolhouses. Like the county debt, it represents 
necessary and actual expenditures. 

By far the largest item of debt created under state authority 
is that of the local governments. In 1890 it was $725,000,000, 
an increase of $40,000,000 over 1880, and averaging $11.50 
per capita throughout the United States. The heavy munici- 
pal debts come where there are most cities; hence it is 
not remarkable that $450,000,000 of this debt should be 
owed in the states from Maine to Virginia, and $184,000,000 
more in the states from Ohio to Kansas. New York, with 
its great metropolis and other populous cities, leads off with 
$187,000,000 of municipal debt, which is $30 per head of 
the population. The Massachusetts localities come next with 
$70,000,000, which is about $34 per head. In 1901 the 
city of Greater New- York had rolled up its debt to $364,- 
000,000, which is considerably more than $100 per capita. 
Chicago owed only $26,000,000, or about $12 per capita; 
Boston owed $46,000,000, or about $80 per capita ; San 
Francisco had practically no debt. It is certain that the 
census figures of 1900, when made up, will show a large 
increase of municipal debt ; so that the total will certainly 
be over $1,000,000,000, or an average of about $13 per 
capita, and will probably be greater than the national debt. 



§ i86] National Debt. 423 

It is difificult to see how municipal debt can be diminished, 
for American cities are waking up to see what may be done 
to make Ufe in cities attractive and healthful. New York 
is now borrowing ^35,000,000 to construct a subway, and 
^30,000,000 for new bridges and tunnels to Brooklyn and 
the neighboring shore. Many cities are spending large sums in 
acquiring park lands and boulevards. The pinch is not in the 
borrowing, for the credit of the great American cities is almost 
as good as that of the federal government, but in the interest 
charge, which in New York City is upwards of ^10,000,000 a 
year. There is a limit beyond which increased taxation 
tends to diminish the revenue, by discouraging the people 
from coming into a place. On the other hand, expenditures 
for parks, breathing-places, boulevards, new streets, bridges, 
tunnels, subways, schoolhouses, public docks, and other mu- 
nicipal purposes, which could only be provided for by loans, 
increase the productive power of a community and thereby 
raise its ability to bear taxes. 

186. National Debt. 

Until about 1900 the heaviest block of public debt in the 
United States was that of the federal government. It goes 
back to a resolution of the Continental Congress of October 
3, 1776, providing for a pubHc loan. During the Revolution 
about $12,000,000 were lent on what we should call bonds; 
about $6,500,000 were lent by the foreign governments of 
France and Spain ; and about $17,000,000 simply accrued, for 
when the United States had nothing else it paid in interest- 
bearing certificates of indebtedness. During the Confedera- 
tion the credit of the government was such that it could 
borrow nowhere, except $3,600,000 from Dutch bankers ; and 
interest accrued, so that in 1 789 about $40,000,000 prin- 
cipal and $13,000,000 interest were outstanding, and evi- 
dences of that debt could be freely bought for specie at from 
15 per cent to 25 per cent of their face. Over $18,000,000 



424 Public Finance. [§ 186 

of state debt was assumed in 1790; so that, when the ac- 
counts were all made up, the United States in 1793 owed 
^80,000,000. 

The debt somewhat increased under the FederaHsts and 
by the purchase of Louisiana, so tha,t in 1804 it stood at 
$86,000,000 ; but Jefferson and Gallatin set themselves stead- 
ily to reduce it, and by 18 12 brought it down to $45,000,000. 
The War of 1812 raised it to $127,000,000; and then it 
slowly decreased, till in 1836 it was practically extinguished, 
and the government had a surplus of $36,000,000, $27,000,000 
of which it gave to the states. The panic of 1837 so reduced 
the revenues that an interest-bearing public debt for running 
expenses at once sprang up, and in i860 it was $65,000,000 ; 
then came the enormous drafts of the Civil War, which raised it 
in 1865 to $2,381,000,000, besides many non-interest-bearing 
obligations. 

Under the influence of high taxes and national prosperity, 
the government then entered systematically upon the almost 
unexampled task of paying off its debt. There was a strong 
feeling in the United States that a national debt was a na- 
tional burden, which must be thrown off as quickly as pos- 
sible ; though the outstanding debt in 1865 was really much 
larger than it appeared, for it had been contracted in green- 
backs, but was payable and was paid, principal and interest, 
in gold. In twenty years, to 1885, the principal was reduced 
from $2,381,000,000 to $1,196,000,000. Then came further 
reductions, till on December 31, 1891, the funded debt stood 
at $590,000,000. During the decade from 1890 to 1900, 
however, the debt was again somewhat increased, partly 
because of the lean years, from 1894 to 1899, and partly 
because of the expenses of the Spanish War ; so that in 
December, 1901, it stood at $945,000,000. 

In addition to this interest-bearing debt, the United States 
has a peculiar kind of obligation impossible either to states 
or to locahties. In 1862 Congress authorized the issue of 
legal-tender paper currency, and eventually about $450,000,000 



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§ i86] National Debt. 425 

was issued. This has been reduced to ^347,000,000, and 
with outstanding fractional currency and some other items 
makes the non-interest-bearing debt of the United States 
about $389,000,000, From the aggregate of funded debt and 
non-interest-bearing debt, which is now about ^1,300,000,000, 
is to be subtracted the cash in the treasury (except several 
hundred milUon dollars held there for the specific redemption 
of various forms of treasury notes and certificates). That 
cash balance is always kept at something over $100,000,000, 
and sometimes reaches $200,000,000 or $250,000,000. Mak- 
ing these deductions, the actual indebtedness of the United 
States on December 31, 1902, was $947,000,000. At present 
there is an annual surplus applicable to the reduction of the 
debt, and there has repeatedly been a strong movement to 
retire the greenbacks. One serious difficulty is that the cur- 
rency system of the national banks is based on government 
bonds, and if the debt is paid all the national banknotes will 
have to be called in. The sentiment of the country, how- 
ever, is strongly against a continuous national debt ; and ten 
years of prosperity should be sufficient to bring us again to 
the happy condition of 1836. 

The rate of interest paid by the United States has varied 
with the conditions of the money market and the necessities 
of the government. The loans of the Continental Congress 
usually carried 6 per cent ; under the funding system of 
Hamilton, bonds were issued at 6 per cent and 3 per cent. 
During the War of 18 12 the government refused to offer more 
than 6 per cent, but was obliged to sell its bonds far below 
par, so that the $80,000,000 incurred probably did not net 
more than $74,000,000 in specie values. This meant that the 
government paid from 8 per cent to 10 per cent for its money, 
and then had to pay a bonus of $6,000,000 when the trans- 
action was completed. During the Civil War much the same 
process was adopted : no bonds drew more than 6 per cent, 
but there were times when $1,000 in gold would buy $2,500 
worth of bonds paying 6 per cent interest in coin ; that is, the 



426 



Public Finance. [§ 186 



lender got 15 per cent on his money, and eventually received 
back two and a half times his investment. The reason was 
simply the doubt whether the United States would be able to 
redeem its promises. A large share of the borrowings during 
the war were for very short terms; it was not till 1869 that 
the great part of the debt was funded in 5 per cent and 6 
per cent bonds. By this time the credit of the government 
had so improved that it began to issue bonds at reduced in- 
terest : by 1880 no interest was offered higher than 4I per 
cent; in 1891 a lot of 4^ per cents fell in and were continued 
at 2 per cent. At present the United States can borrow any 
amount at 2| per cent, and even at 2 per cent, for it has the 
best credit in the world. 

This low rate of interest is obtained because the govern- 
ment scrupulously redeemed its promises on the Civil War 
loans, and because government bonds are absolutely free from 
any tax by state or local governments ; so that a 2^ per 
cent United States security may perhaps net as much as a 
4 per cent railroad bond. By the reduction of the debt and 
the improvement of the public credit, the interest charge, from 
one of the heaviest items of national expenditure, has become 
one of the lightest. In 1867 the interest was ^144,000,000; 
in 1902 it was only ^29,000,000. 

The public debt has been expressed in many different forms, 
of which the most important are the following : — 

(i) The bonded debt, expressed in a formal engraved bond. 
In order to attract investors, there is usually a provision that 
bonds cannot be called in before stated periods, which may 
be five, ten, or twenty years. When the government has a 
surplus available for debt redemption, and no bonds are yet 
due, it buys them in the open market, often at considerable 
premiums, and thus disposes of the surplus and at the same 
time cuts off interest. United States bonds are a favorite in- 
vestment, because secure, and because they are the legal basis 
of the national bank notes. Coupon bonds are furnished with 
engraved coupons for each interest payment, which may be 



§ iSy] Reforms. 427 

deposited like checks in any bank. Holders of registered 
bonds receive their interest by government check. 

(2) The treasury note. This is an interest-bearing prom- 
ise to pay, usually running one, two, or three years. Such 
notes have been issued in every time of financial stress, — as, 
for instance, during the War of 181 2, in the financial depres- 
sion of 1837 to 1842, and during the Civil War, when hun- 
dreds of millions of such notes were issued bearing 7.3 per 
cent interest. Since the Civil War no resort has been had to 
this form of borrowing. 

(3) Circulating paper money. Although suggestions were 
often made that this resource be used, it was not actually 
employed until 1861, and in 1862 began the first legal-tender 
notes. 

187. Reforms in Public Finance. 

From the two chapters on financial functions, we may see 
in what direction improvements ought to proceed. The prac- 
tical division of taxation, by which the federal government 
depends almost entirely on indirect taxes, — imposts or con- 
sumption duties, — leaves to the state and local governments 
almost the whole field of land, property, franchise, license, suc- 
cession, and miscellaneous taxes. The advocates of a single 
tax, to be laid on real estate, make a strong case, because all 
occupations and franchises must have the use of land and can 
be reached in that way ; but no state has so far shown a dis- 
position to give up personal taxes, and many states find direct 
corporation taxes easy to levy and very productive. It is 
desirable that vexatious taxes producing small amounts and 
expensive in application, such as state income taxes, should 
be abandoned. 

A great reform may be made in the methods of assessment, 
by creating more permanent and responsible and better-paid 
boards of tax assessors : over-estimates lead to vigorous objec- 
tions, and often to resort to the courts, but an error or fraud 
or any under-assessment of real estate is likely to pass unques- 



428 Public Finance. [§ 187 

tioned. The ordinary personal-property tax is unfair, because 
it is evaded in whole or in part by fully three fourths of the 
tax-payers, and the other fourth have to bear an unreasonable 
share of the burden. 

The national taxes are productive, and are easily and cheaply 
collected. The chief practical difficulty in administering them 
is that the tariff is laid for two purposes, which really conflict 
with each other : so far as it brings in revenue, it is not pro- 
tective ; so far as it is completely protective, it shuts off reve- 
nue. In the effort to distribute protection, the tariff is assessed 
on more than 1,000 different articles, and cannot fairly be laid 
and collected because no appraiser is wise enough to find the 
value of so many articles. 

At present all forms of government in the United States are 
acquiring property : parks, forests, and reservations increase ; 
public buildings of every kind are multiplied ; the trend seems 
distinctly to be toward a municipal ownership of waterworks 
and of gas and electric Hght plants; and in 1902 the people 
of Chicago voted by a great majority that it was expedient for 
that city to acquire the car lines. This throws an additional 
responsibility upon the governments, and emphasizes the neces- 
sity of experts to manage public property. 

With the exception of the national government, every Ameri- 
can government has some kind of budget ; but in no state, and 
in few cities, is there any one official who keeps a firm hand 
on the relations between income and outgo. The mayor, and 
to some degree the finance committees of city councils, con- 
sider the city finances together ; and in a few cities, notably 
New York, the budget of expenditures and taxation is made 
up by a small board of apportionment or estimate, and is not 
voted on by the city council. What we need is a stronger 
sense of the importance of concentrating financial responsibility 
and supervision in a few hands. 

In the United States, public expenditures usually go directly 
to public purposes. In state governments, and still more in 
city governments, there are some sinecures, and many cases 



§ 187] Reforms. 429 

where two or three men are paid to do the work of one. In 
other words, though the items of state and city expenditures 
are almost ahvays for the pubhc good, it takes more money to 
accomplish the purpose than in private corporations. States 
and cities skimp the salaries of the most important public 
officers, so that it is a sacrifice for the best men to accept 
public service : policemen, clerks, firemen, and laborers are 
often much over-paid in comparison with the servants of 
railroad and manufacturing companies. The public suffers 
great loss also from not working out in advance careful 
schemes of public improvement, so as to do first what is most 
needed, and to avoid doing things several times over. The 
sums spent in digging up Fifth Avenue in New York City and 
then filling it in again would long ago have built a tunnel from 
end to end, sufficient to hold sewer, gas, water, and electric 
mains, and everything else that needs to go below the surface. 

Public debts are in general a great public advantage : but 
over-borrowing brings about ruin, as has been shown in the 
two epochs of repudiation by the states, and in the bankruptcy 
of small cities ; and Americans are too apt to borrow money 
for temporary needs, instead of facing the taxation which must 
eventually pay for all public expenditures. 

One danger arising from foreign public debts does not apply 
to the United States : the |6, 000,000,000 of French debt, with 
an interest charge of about ^200,000,000 a year, is really a 
payment by one part of the French population to another part ; 
sometime the burden of interest will become such that there 
will be a revolution, and a scaling, or repudiation, of the debt. 
In the United States, where the total burden is not a fifth as 
great per capita, and where the country is extremely rich and 
productive, this danger can hardly come about, especially since 
the bonded debts of railroads alone far surpass the total public 
debt within our borders. 



Part VIII. 

External Relations. 



CHAPTER XXIII. 

FOREIGN INTERCOURSE. 

188. References. 

Bibliography : A. B. Hart, Foundatiojts of Am. Foreign Policy (1901), 
ch. viii ; A. B. Hart, Manual (1908), §§73-86, 121, 122, 226, 297; E. 
McClain, Constitutional Law (1905), §§ 182; Channing and Hart, Guide 
(1896), §§ 153, 162, 164, 168, 178, 212; J. B. Moore, htternational Abitra- 
tions (6 vols., 1898), I, Ixxxiii-xcviii ; J. B. Moore, Digest of Inte7-natio?tal 
Law ; bibliographies and foot-notes in the treatises on international law. 

Diplomacy: J. B. Moort, Am. Diplomacy (igoc^); E. McClain, Ci?/?- 
stitutional Law, §§ 133, 134; J. W. Foster, Practice of Diplomacy (1906), 
chs. i-xi; T. B. Edgington, Mo7iroe Doctrine {ifp^), ch. x ; J. H. Latane, 
America as a World Power {Am. Nation, XXY, 1907), ch. vi ; A. B. 
Hart, A^ational Ideals (Am. Nation, XXVI, 1907), ch. xvii; E. Schuyler, 
Atn. Diplomacy (1886) ; J. W. Foster, Centwy of A7n. Diplomacy (1900) ; 
J. B. Henderson, Am. Diplomatic Questions (1901) ; W. E. Curtis, U. S. 
and Foreign Powers (1899); J. H. Latane, U. S. and Spajiish America 
(1900) ; T. S. Woolsey, America's Foreign Policy (1898) ; J. Bryce, Am. 
Canmonwealth (ed. 1901), II, chs. xciv, cxii; A. B. Hart, Foundations 
of Am. Foreign Policy (igoi). — Sources: Memoirs and correspondence 
of diplomats ; J. B. Moore, International Arbitrations { 1898) ; J. B. Moore, 
Digest of International Law (8 vols., 1906) ; Am. State Papers, Foreign 
(period 1789-1828) ; Foreign Relatio}is (annual volumes since 1861) ; 
J. D. Richardson, Messages of the Presidents (lo vols., 1896-1899) ; A. B. 
Hart, Contemporaries (4 vols., 1897-1901), II, §§199, 216, 217; III, 
§§ 48-53, 92-99, 128, 142-150; IV, §§ 14, 98-100, 173-179, 192-196. 

Treaties : On the principles of negotiation, see the treatises on inter- 
national law, especially H. Wheaton, International Law (Dana ed., 



§ 189] Foreign Policy. 431 

1866), §§ 29, 252-289; (Lawrence ed., 1863), pp. 50-52, 441-502 ; W. E. 
Hall, International Law (4th ed., 1895), ch. x; J. W. Foster, Practice of 
Diplomacy (1906), chs. xii-xv; J. B. Moore, Digest of International Law 
(Washington, 1906), V, §§734-896; C. Calvo, Droit International 
(6 vols., 4th ed., 1887-1896), III, 373-404. — On the ratification of trea- 
ties by the Senate, see ch. xiii ; S. B. Crandall, Treaties, their Making 
and Enforcetnent (1904). Text of Treaties : Treaties and Conventions 
(1889) > Statutes at Large ; Treaties in Force (1904). 



189. History of American Foreign Policy. 

No function of American government is so centralized as the 
foreign relations. The constitution not only gives to the presi- 
dent and Senate sole power to make treaties : it also bestows 
on Congress exclusive power to regulate commerce with 
foreign nations, to punish offences against the law of nations, 
to declare war, to raise, support, and govern armies and 
navies; it provides that no state shall enter into any treaty, 
alliance, or confederation, or lay any duties on imports ; or tax 
exports if Congress objects, or without the consent of Congress 
keep troops or ships of war in time of peace, or enter into any 
agreement or compact with a foreign power ; or engage in war 
unless invaded ; while to the federal courts it gives jurisdiction 
in almost all cases involving foreign relations. 

This exclusive power dates back to colonial times : the 
English colonies had no authority to enter into relations with 
foreign countries ; they were bound by treaties made between 
England and foreign powers, and were drawn into wars not of 
their own choosing. From 1775 to 1789 the states had some 
control over foreign relations, and could legislate on foreign 
commerce ; but they were represented in foreign courts only 
through ministers appointed by Congress, and no state made 
any arrangement or treaty with a foreign power on its own 
account. 

The foreign powers of the new federal government were 
almost immediately invoked by the breaking out of the 
French Revolution, followed in 1792 by war in Europe, which 
continued with but one year of peace till 18 15. In a proclama- 



432 Foreign Intercourse. [§ 189 

tion of April, 1 793, President Washington laid the first stone 
in our national policy by his neutrality proclamation. The 
aggressions of both England and France made the carrying 
out of this policy a difficult task : in 1 794 we were on the 
verge of war with England; in 1798 we engaged in naval 
war with France. Nevertheless, these troubles were healed, 
and until 181 2 we were at peace, except with the Barbary 
Powers. The splendid naval victories of the War of 1812 
gave us a favorable peace, and so much prestige in diplomatic 
affairs that from that day to this few powers have wilfully 
antagonized the United States. 

A period of great territorial expansion now set in : Louisiana, 
Oregon, West Florida, and East Florida were annexed from 
1803 to 1819. Meantime a new group of international 
neighbors grew up in the Latin- American states ; and in 
1823, in their behalf, Monroe reiterated the principle that the 
United States would not intervene in foreign difficulties, but 
he coupled with it the declaration that foreign powers must 
not interfere in quarrels not their own in America. 

Until the annexation of Texas, New Mexico, and California, 
in 1845 to 1848, the country was chiefly engaged in develop- 
ing the West. California, however, brought up the question 
of isthmus transit and a canal, a matter which continued a 
storm centre of diplomacy for half a century. The Civil War 
brought two great international difficulties, — the fitting out of 
Confederate cruisers in British ports, and the attempt of France 
to conquer Mexico. As soon as the war was over, the United 
States took up these problems and settled them both to its 
satisfaction. The question of Cuba and the control of the 
West Indies then became important, and from 1868 to 1897 
busied our diplomats. That question led to the Spanish War 
of 1898, as a result of which Cuba became a dependency of 
the United States, and the Spanish possessions of Porto Rico 
and the Philippine Islands were annexed to this country. 

Although since the Revolution the United States has engaged 
in five foreign wars, — the French in 1798, the Barbary in 



§19°] Diplomatic Representatives. 433 

1803-1804, the English in 1812-1815, the Mexican in 1846- 
1848, and the Spanish in 1898, — its purpose has been 
essentially pacific in all except the Mexican War. The main 
principle of American diplomacy is to keep out of complica- 
tions in Europe, and at the same time to prevent violent and 
destructive changes anywhere in America. 

190. Diplomatic Representatives. 

Foreign relations do not adjust themselves, nor are they 
adjusted simply by principles of mutual interest. The relations 
between nations are regulated first of all by international 
law, — that is, by centuries of precedents and agreements, — 
and are recorded by treaties ; and both international law and 
treaties must be applied by individuals organized in a regular 
foreign service. 

The official head of the diplomatic service is the president ; 
and most men in that office keep close relations with the 
Department of State. Under the constitution, the president 
formally receives foreign ambassadors ; but it is very unusual 
for him personally to discuss diplomatic matters with a foreign 
minister, or to write personal letters to a foreign government. 
Many of the presidents before 1861 were experienced in 
the diplomatic service : John Adams, Jefferson, Monroe, John 
Quincy Adams, Van Buren, and Buchanan had all been 
accredited ministers abroad, and each took special interest 
in foreign affairs while president. 

Next in power comes the secretary of state, who in other 
countries would be called minister of foreign affairs. It is his 
duty to draw up instructions for ambassadors, to keep in 
correspondence with them, to discuss matters with foreign 
representatives, and personally to conduct negotiations and 
frame treaties in Washington. Few officers of government 
have such an opportunity to set their mark on their country's 
history and to affect their country's destiny. The secretary- 
ship of state has been held by some of the most eminent 
Americans, among them Jefferson, Madison, Monroe, John 

28 



434 Foreign Intercourse. [§ 190 

Quincy Adams, Henry Clay, Martin Van Buren, Daniel 
Webster, John C. Calhoun, William L. Marcy, Lewis Cass, 
Edward Everett, James Buchanan, William H. wSeward, 
Hamilton Fish, James G. Blaine, John Sherman, and John 
Hay. 

The president appoints the members of the diplomatic 
service (subject to confirmation by the Senate), and may 
remove them. Washington, for instance, recalled Monroe 
from France in disgrace in 1796; Jackson recalled General 
Harrison from Colombia in 1829; Mr. Motley was removed 
from the Austrian mission by President Johnson in 1867, and 
from the mission to England by President Grant in 1870. 
Foreign representatives are accredited directly to the presi- 
dent, and he may refuse to hold diplomatic relations with 
men who are offensive to him : President Madison declined 
to allow further correspondence with James Jackson, the Eng- 
lish minister, in 1809; and General Grant in 1871 demanded 
the withdrawal of Catacazy, the Russian minister. 

It is a disputed question whether the president may appoint 
foreign representatives without previous provision for their 
salaries by act of Congress. Of course no legation can be 
permanently maintained if Congress refuses to vote money for 
the necessary salaries, though President Grant in 1876 pro- 
tested against a bill for discontinuing a legation ; but presi- 
dents often appoint commissioners for special exigencies. For 
instance, in 1887 Mr. Cleveland appointed a commission to 
negotiate a fishery treaty with Great Britain, and in 1893 des- 
ignated Mr. Blount as special commissioner to investigate the 
state of things in the Hawaiian Islands. 

No qualifications for ministers are prescribed by the consti- 
tution or by law ; but most appointees have already seen 
public service of some kind in Congress, in the state govern- 
ments, or in the federal civil service. It is unusual to appoint 
actual officers in the army or navy, even as special commis- 
sioners. Since it costs a great deal of money to keep up 
a legation, wealthy gentlemen of public spirit are often 



§ igo] Diplomatic Representatives. 435 

appointed, and prove excellent ministers. As a minister is 
expected to establish friendly relations with the people to 
whom he is sent, it is very desirable that he should speak the 
language of their country; but there are many instances in 
which American ministers cannot even use French, which is 
the usual intermediate language in diplomatic circles. Amer- 
ican ministers are of course subject to the same rules of 
acceptance by foreign countries as are applied in Washington : 
in 1885 the Austrian government refused to receive Mr. Keiley 
as minister, one ground being that his wife was a Jewess ; and 
there was nothing for it but to appoint some one else. 

The diplomatic representatives of the United States are 
divided into four categories : ambassadors ; envoys extraordi- 
nary and ministers plenipotentiary ; ministers resident ; and 
charg(Js d'affaires, who are diplomatic subordinates, for the 
time being put in charge of the business of the legation. 
Special commissioners, a fifth kind of representatives, are 
often appointed to sit on arbitrations, or to adjust claims and 
boundaries. The dignity of ambassador was not created until 
1893, and is enjoyed only by the representatives sent to and 
from Great Britain, France, Germany, Russia, Italy, Austria, 
and Mexico. Every legation has one or more secretaries, who 
often remain for many years at their posts in order to keep up 
the traditions of the legation. Sometimes the United States 
sends special ambassadors, as on the occasion of the corona- 
tion of Edward VII in 1902. 

The term of a foreign representative is not fixed by law, 
but there are always numerous changes when a new president 
comes in ; so that eight years is about the limit of an ap- 
pointment. Mr. Marsh, however, was minister to Italy from 
1 86 1 to 1882, serving under six presidents. Secretaries of 
legation sometimes are promoted to small diplomatic posts ; 
but the diplomatic service has offered no career in which a 
man could expect to rise to an important life position. Under 
Presidents McKinley and Roosevelt there have been frequent 
cases of transfers of successful ministers from one post to a 



436 Foreign Intercourse. [§19^ 

larger one : thus, Mr. Hardy has been minister to Persia, 
Greece, Switzerland, and Spain. 

Ministers have a special right to protection by the author- 
ities of the countries to which they are accredited : no min- 
ister, and no employee or servant of a minister, may be 
arrested on civil suit ; no police may enter the premises of 
a minister ; and in disturbed countries, like those of South 
America and the Orient, ministers may give protection to 
refugees in time of revolution. 

The highest salaries paid to diplomatic representatives are 
^17,500 to each of five of the ambassadors; the lowest are 
^1,200 for a third secretary of legation. These salaries are low 
in comparison with those paid by foreign powers for similar 
services : the British minister at Paris has a salary of $40,000 
a year, with a splendid house and many small expenses borne 
by his government. Indeed, no American can accept a 
mission to a first class power unless he has private means in 
addition to the salary. 

Notwithstanding the somewhat haphazard way in which 
ministers are appointed, and their frequent lack of the qualifi- 
cations expected in the foreign diplomatic service (such as 
previous public service, social distinction, and knowledge of 
the languages), the United States has seldom failed to obtain 
what it desired because our minister was not up to his work. 
In these days of ocean telegraphs, the minister constantly 
refers home for instructions, and takes no important steps 
without the direction of the secretary of state ; and our very 
simplicity, directness, and lack of form often make it easier 
to get at the kernel of the matter in controversy. 

191. Consuls. 

Apart from the diplomatic representatives are the com- 
mercial representatives, the consuls. Since 1778 the United 
States has appointed and received consuls, who are accredited 
to particular places, especially the seaports, and are expected 
to represent the trade interests of their country. The grades 






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mOMATICANDMNSULAR OFFICES^ 

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§ i9i] Consuls. 437 

of the service are as follows : consul-general, consul, vice- 
consul, consular agent. The consul-general acts as consul in 
the capital of the country to which he is accredited, and also 
supervises the other consuls in that country ; the vice-consul 
is simply a substitute for a consul for the time being ; the 
consular agent is a kind of deputy for a consul. The consuls 
are appointed by the president and confirmed by the Senate, 
and receive salaries ranging from ^i,ooo to $4,000; those of 
the consuls-general run up to $7,500. Official fees are not 
added to the salary ; but unofficial fees, such as the acknowl- 
edgment of papers, are retained by the consuls, and sometimes 
amount to several hundred dollars a year. 

Most of the consuls are men who have no other business. 
The United States appoints few merchant consuls ; but it is 
common to have a vice-consul or a consular agent who is a 
citizen of the foreign country. Such persons, or paid clerks, 
are likely to transact most of the consular business. V 

Although in 1856 the consular service was divided into 
classes, and in 1864 thirteen consular clerks were created as 
a means of entrance to the service, those clerks are not pro- 
moted ; but transfers from smaller to larger regular consulates, 
once rare, have now become frequent. 

Foreign consulates are much prized, although the pay is 
small ; for Americans like to visit and live in foreign coun- 
tries. Hence a powerful political pressure is brought to bear 
on the president and secretary of state ; and most consuls are 
appointed, not because they are acquainted with business in 
general or with the trade of the places to which they are 
going, but because they have been useful in the campaign or 
the party. Under each administration there is a new crop 
of expectants, who can be provided for only by removing 
the previous occupants ; therefore the consular service has 
been one of the branches most systematically disturbed for 
political reasons. 

Since 1895 various attempts have been made to reform 
the consular service by admitting men to the lower grades 



43 B Foreign Intercourse. [§191 

on examination, and then promoting and transferring them 
according to the needs of the service ; and eventually this 
policy must prevail, for the development of American com- 
merce abroad is much impeded by a service which contains 
many good and conscientious men, but which neither pro- 
motes nor keeps in office those who have proved their 
competence. 

The 300 consuls and 30 consuls-general are all subject to 
the general rule of international law that no functions can be 
exercised until the " exequatur " is received, — that is, the 
official recognition of the government to which they are 
accredited ; and both in the United States and in foreign 
countries the exequatur is sometimes revoked, and the con- 
sul is thus cut off from all official action. A famous instance 
was the withdrawal of the exequatur of the French consul at 
Boston in 1793. Consuls are not entitled to the immunities 
of diplomatic representatives ; they may be sued for ordinary 
debts, although by treaty many countries agree that they shall 
not be subject to civil arrest or to the seizure of archives. 

The official functions of consuls are as follows : — (i) They 
have commercial duties, pertaining to the movement of trade 
between the two countries : for instance, they certify invoices 
of merchandise exported to the United States, and look after 
American sailors who are ill or stranded in foreign ports. 
Consuls also act as notaries for the registration of various legal 
papers ; and they make periodical reports on the trade of the 
country in which they live, with especial reference to com- 
merce with the United States. These reports may be on any 
subject which seems significant, and considerable extracts from 
them are published in the official serial known as Cons7ilar 
Reports, A consul at Three Rivers, Canada, who in 1891 
introduced into his report some criticisms of the people of 
the place, saw his opinions printed in full, with the result that 
he was shortly transferred from his post. 

(2) Consuls have several judicial functions: they investi- 
gate difficulties or crimes that have occurred in American 



§ 192] Treaties. 439 

ships on the high seas ; and they may hold a kind of court to 
examine charges of cruelty. In many partly-civilized coun- 
tries, especially in Asia and the Turkish dominions, where 
Americans have no confidence in the local courts, consuls act 
as judges in cases involving two Americans or an American 
and a native. Such courts may actually condemn citizens of 
the United States to death for crimes committed in foreign 
countries, if the minister approves of the conviction. Similar 
powers are exercised in such countries by consuls of other 
foreign countries ; but they have more distinctly defined juris- 
dictions, with opportunities for appeal to their home courts, 

(3) Consuls have a variety of social functions not set forth 
in their instructions : they are expected to invite distinguished 
visiting Americans to dinner ; to lend money to the American 
whose draft has not come ; to recommend lodgings, and to 
quarrel with the proprietors if the tenants are dissatisfied. A 
former consul at Geneva declares that he was called upon td^ 
tell where real American chewing tobacco could be obtained, 
to forbid the French government to examine a lady's trunk at 
the frontier, and to decide how " bombshell " should be pro- 
nounced. The wise travelling American earns the gratitude 
of his consul and his minister by calling upon them only when 
he is in a difficulty from which an experienced official can 
and should help him out. 

192. Treaties. 

The treaty, or solemn agreement, between two countries 
is as old as history : a treaty between Corcyra and Athens 
brought on the Peloponnesian War. In colonial times, all 
treaties made by England were for the colonies as well as for 
the home country ; thus, by successive agreements with France, 
the boundary of the English possessions in America was ex- 
tended. During the Revolution the treaty-making power for 
the new states was by common consent vested in Congress, 
which commissioned ministers to most of the European courts, 
and in 17 78 secured an inestimable treaty with France, under 



440 Foreign Intercourse [§ 192 

which French ships and soldiers came over and made possible 
the military success of the Revolution. The treaty of peace 
of 1782 was the first of many agreements with England. 

The treaty-making power of the Confederation was incom- 
plete because it did not extend to commercial questions ; but 
by the constitution of 1787 the power was made unmistakable, 
for the states were deprived of all control over commerce, and 
power was given to the president and Senate *' to make 
treaties," a clause which is interpreted to mean treaties on 
any subject within the field of the federal government. Since 
that time about 300 treaties have been made and ratified, 
besides those that have failed. Among the most important 
agreements are the treaties of peace with France (1800), 
Great Britain (1814), Mexico (1848), and Spain (1898); 
the commercial treaties with England (1794, 1815, and 1854), 
China (1844), and Japan (1854) ; the boundary treaties with 
England (1818, 1842, and 1846) ; the canal treaties with 
Colombia (New Granada) (1846) and England (1850 and 
1902) ; the German treaty on citizenship (1868) ; the Treaty 
of Washington setthng the Alabama difficulty (1871). The 
United States has assented to various general treaties, such as 
postal conventions; and also to the agreement of 1885 on 
the Congo Free State. 

When a treaty is negotiated abroad, a special commission 
composed of several persons is often appointed. For in- 
stance, Pinckney, Gerry, and Marshall were sent to France in 
1797; ^^^ treaty of peace of 18 14 was negotiated by five 
commissioners — Clay, Gallatin, John Quincy Adams, Bayard, 
and Russell; and that of 1898 at Paris by five commissioners 
— Day, Davis, Frye, Gray, and Reid — of whom three were 
members of the Senate. 

Most negotiations, however, are carried on by our Ameri- 
can minister at the foreign court, under instructions from 
Washington ; or in this country by the secretary of state with 
the foreign minister. Of this latter kind are the treaties of 
1842, 1846, 1 87 1, and 1902, with Great Britain. In 1891, 



§ 192] Treaties. 441 

when a conference was being held with representatives of 
Great Britain and Canada, Colonel Foster as a special com- 
missioner made some statements which he said were author- 
ized by the president ; Secretary Blaine thereupon withdrew 
from the room, on the ground that as secretary of state the 
president's wishes should be made known only through him. 
In drawing up important treaties, it is common to write out a 
sort of journal of the conferences, known as a " protocol," 
in which appears a joint statement of what is proposed and 
answered, with copies of papers which are handed in. 

No negotiations can be carried on except through persons 
officially accredited for that purpose by the president. In 
1806 Dr. Logan attempted to get from the French govern- 
ment information which had been refused to our minister ; the 
result was a statute making it a criminal offence for a private 
individual to assume any diplomatic functions with a foreign 
power. I 

Few treaties are ever negotiated without knowing before- 
hand the mind of the president on the general issues ; never- 
theless, if the negotiators come to an agreement and sign a 
treaty, it is not binding on the president, who may at his 
discretion stop it there, without referring it to the Senate. 
Thus, Jefferson held back the treaty with England in 1806; 
and President Cleveland in 1893 withdrew a treaty for the 
annexation of Hawaii, which was pending in the Senate when 
he came into office. 

The constitution provides that treaties shall be made " with 
the advice and consent of the Senate . . . provided two-thirds 
of the Senators present concur." The word " advice " sug- 
gests that the president may consult the Senate in advance ; 
and President Washington, in 1789, came personally upon the 
floor of the Senate and asked the advice of the Senate then 
and there. Somewhat fearful of the majestic presence of the 
great man, the Senate referred the matter to a committee ; and 
that was practically the end of any attempt by the president to 
hold official personal council with the Senate. Still, every 



442 Foreign Intercourse. [§ 192 

prudent president discusses tlie chances of a treaty with his 
leading senatorial friends ; and presidents occasionally sound 
the Senate by messages. Polk, in 1846, formally called upon 
the Senate to inform him whether it would ratify a compro- 
mise boundary in Oregon, and received the desired assurance. 

If the president approves the treaty submitted to him, he 
then sends it to the Senate for ratification ; there it is referred 
to the Committee on Foreign Relations, the chairman of which 
is really a sort of congressional secretary of state. If, as often 
happens, the committee is not interested in the treaty, it may 
remain for months unregarded, although the Senate has power 
to call it up at any time. The necessary two-thirds vote of 
the Senate has almost always been obtained for treaties of 
peace and for the adjustment of dangerous diplomatic contro- 
versies ; indeed, the necessity of a two-thirds vote is so patent 
that a president seldom comes to an agreement with a foreign 
country without a reasonable assurance beforehand that the 
treaty will be ratified. In 1795 Washington, by his utmost 
personal influence, got a 24 to 12 vote for the Jay Treaty; in 
1869 the Johnson-Clarendon Convention for the settlement of 
the Alabama question had only one vote in its favor. An 
interesting case is the treaty of 1844, for the annexation of 
Texas : it was held for six weeks by the Committee on Foreign 
Relations in order to affect a nominating convention, and then 
was voted down. 

The Senate does not always accept the alternative of approv- 
ing or rejecting a treaty : it often makes amendments, a step 
which of course involves a new discussion with the foreign 
country. If the amended treaty is accepted by the foreign 
power, it is not necessary to submit it a second time to ratifi- 
cation ; if it is not accepted, the treaty fails. Such was the 
case with the Hay-Pauncefote Treaty of 1900, which was so 
amended by the Senate as completely to alter its tenor. 

A treaty ratified by the Senate is still not valid till ratified 
by the other power : Thus, the Florida Treaty was hanging 
uncertainly from 1819 to 1821. When ratifications are once 



§ 192] Treaties. . 443 

exchanged, the president may still withhold the ofificial procla- 
mation ; but the treaty is complete so far as the foreign 
country is concerned : a failure to carry it out would be good 
ground for diplomatic complaint, and might be a ground for 
war. Here arises the very important question of the relation 
of the House of Representatives to the treaty-making power. 
In 1796 a bill was introduced to appropriate money to carry 
out the Jay Treaty ; the House called on President Washing- 
ton to send explanatory papers, and he declined to do so, on 
the ground that he was under no obligation to explain his 
diplomacy to the House, since the treaty was already the law 
of the land. After a long debate, the House by the narrow 
vote of 51 to 48 made the necessary appropriation. The 
same question has been raised many times since. Sometimes 
a treaty contains a stipulation that it shall not go into effect 
until Congress has passed the necessary laws, and such a 
treaty with Mexico in 1883 failed because the House would % 
not take action. 

Of late years the House has been inclined to claim that no 
treaty which alters the duties on imports is valid without its 
assent, a difficulty which was avoided by the act of 1890, 
authorizing the president to make reciprocity treaties on cer- 
tain conditions. But the president and Senate, under the 
constitution and the practice of a century, need no permission 
to make commercial treaties which alter the tariff, and they are 
subject to no special limitations : that power has been exer- 
cised at least fifty times. 

A treaty supersedes a law ; but a law of later date equally 
supersedes a treaty, as was shown in 1798, when Congress by 
statute declared all the French treaties invalid and extinct. 
It would be presumed that a general tariff law was not intended 
to supersede special treaty rights secured by foreign nations 
through concessions on their part ; but it is perfectly com- 
petent for the president and a majority of both houses to 
destroy the effect of a treaty by hasty legislation. They did 
so in 1882, bypassing an act to'prohibit Chinese immigration, 



"444 Foreign Intercourse. [§ 193 

in the face of a treaty allowing it. The only recourse of an 
offended foreign country in such a case is to protest that a 
contract with it has not been observed. 

193. The United States as a World Power. 

A discussion of our diplomatic machinery throws little light 
upon the question of the real place of the United States in 
international affairs. The original United States was a very 
feeble power, even in the conditions of the eighteenth cen- 
tury ; it was not even the strongest power in America when 
it was created ; and to this day, England has greater territory 
on the North American continent, besides many West India 
Islands. 

A wonderful growth in population and resources speedily 
gave the United States the first place. By the annexations of 
Louisiana, West Florida, and East Florida, it made itself supe- 
rior to Spain ; after the Napoleonic wars France ceased to 
exercise much influence in America ; and the British posses- 
sions have never had such population or wealth as to vie with 
the United States. Since 181 5, therefore, the United States 
has been undisputedly the leading power in America, and none 
of the fragments of the former Spanish empire have ever shown 
the capacity to come abreast of this country. 

The introduction of steam navigation across the ocean in 
the thirties brought us in time and cost of travel and transpor- 
tation much nearer to Europe ; and from about 1815 to i860 
we were negotiating commercial treaties with European powers 
and with other American countries. In the forties and fifties 
it looked as if the United States and Great Britain would ami- 
cably combine to control the Americas : the Clayton-Bulwer 
Treaty of 1850 was a recognition of England's equal interest 
in an isthmus canal; the Reciprocity Treaty of 1854 greatly 
stimulated commerce with Canada. 

Meanwhile the United States was reaching out into the 
Pacific. About 1820, missionaries went to the Sandwich 
Islands ; in 1 844 we made th'e first commercial treaty with 



§ 193] A World Power. 445 

China; the annexation of Cahfornia immediately followed, 
giving us a more advantageous Pacific front than that of 
Oregon; and in 1854 we broke in the crust of Japan, and be- 
gan trade with that country. In 1861 the United States was 
reaching east and west for trade and intercourse, and was 
recognized as the power upon the whole most concerned in 
Central and South American affairs. 

The Civil War brought about difficulties and quarrels with 
both England and France ; and it took ten years to settle 
the two questions of the Alabama claims and Mexico. The 
isthmus problem now returned ; and it became evident that 
the American people had an ever stronger sense of their para- 
mount interest on the continent. In the war of 1898, for the 
first time the United States decisively entered the Caribbean 
Sea by assuming the protectorate of Cuba and by annexing 
Porto Rico, thus acquiring points of military vantage in the 
Gulf of Mexico. 

The United States in 1903 is by far the most powerful of 
American nations : it is firmly seated in the Caribbean Sea, 
is about to set foot on the isthmus, and has a vantage ground 
on the Asiatic coast ; and it is accustomed to take part in 
international discussions. With great physical capacities, with 
a restless, energetic people who love to travel and to come into 
new experiences, the United States, by its annexation of the 
Philippine Islands in 1898, became an Asiatic power. Two 
years later, in the Boxer insurrection in China, it joined the 
other powers in recovering the ambassadors at Pekin, and 
came forward again and again as the advocate of moderation 
and of justice ; and its influence was successful. Our rela- 
tions with Europe are those of peaceful trade ; but in any 
great crisis which may come to mankind in the future the 
United States must inevitably take a part as a world power, 
and that part is likely to be in favor of peace. 



CHAPTER XXIV. 

FOREIGN COMMERCE. 

194. References. 

Bibliography: Brookings and Ringwaltj Briefs for Debate (1896), 
Nos. 26, 28, 37-44; C. D. Wright, Practical Sociology (Am. Citizen 
Series, 1900), §§ 23, 60 (immigration) ; A. B. Hart, Manual (1908), §§ 119, 
120, 221, 225 ; R. C. Ringwalt, Briefs on Public Questions (1906), Nos. 5, 
6, 13, 14; Channing and Hart, Gtiide (1896), §§ 153, 170, 171, 174. See 
also references in cli. xii above, ch. xxvi below. 

Imports and Exports : R. Mayo-Smith, Statistics and Economics 
(1899), 27S-287; C. R. Flint, J. F. Johnson, C. J. Bullock, in North 
American Rev., CLXXII, 381-393; CLXXIII, 102-133 (1901); R. L. 
Ashley, v^?«. Federal State (1902), ch. xxvii ; E. R. A. Seligman, Economics 
(3d. ed., 1907), §§ 277-232 ; — Statistics : Monthly Summary of Commerce 
and Finance: Foreign Cot?imerce and Navigation. 

Immigration : J. R. Commons, Races and Immigrants (19P7) ; P. F. 
Hall, Immigration (1906); A. Shaw, Political Problems (1907), ch. iii ; 
J. H. Latane, America as a World Po%ver {Am. Nation, XXV, 1907), ch. 
•xvii ; Industrial Commission, Report {\()oo-\C)Oz) , XV ; XIX, §§ 957-1030 ; 
A. B. Hart, National Ideals {Am. Nation, XXVI, 1907), ch. iii; F. A. 
Walker, Discussions in Economics and Statistics (2 vols., 1899), II, 417- 
454 ; J. A. Riis, How the Other Half Lives (1890) ; R. Mayo-Smith, Emi- 
gration and Immigration (1890) ; F. P. Powers, Occupations of Immigrants 
{Quar . Journal of Economics, II, 223-228, 1888) ; H. H. Hart, Immigra- 
tion a7id Crime {Am. "Journal of Sociology, II, 369-377, 1896). — Sources: 
Immigration Restriction League, Reports, etc. ; Commissioner of Immi- 
gration, Annual Report ; North Am. Rev., CLII, 27-36; CLIV, 424-438; 
CLVI, 1-8, 220-227 ; CLVIII, 494-499; CLXII, 649-657 ; CLXIV, 526- 
536; CLXV, 393-402 (1891-1897) ; Forum,\\\, 533-542 ; XVI, 805-814; 
XVI, 560-567(1887, 1893). 

Regulation of Commerce : The constitutional power is discussed 
in the constitutional treatises, especially. Prentice and Egan, Commerce 
Clause (1898) ; E. McClain, Constitutional Law (1905), §§ 83-93; W. D. 
Lewis, Federal Power over Commerce (1S92) ; A. Stickney, Control of 
Commerce (1898) ; Interstate Commerce Commission, Reports, 1887- 
(12 vols, to 1907) ; J. Story, Commentaries (4th and 5th eds., 1873, i^Q^); 
§§ 1061-1076; T. M. Cooley, Constitutional Limitations (6th ed., 1890), 
720-725; H. C. Black, Constitiitional Law (2d ed., 1897), 186-197, 368- 
371 ; J. R. Tucker, Constitutional Law (1899), §§ 250-267. 

446 



§ i9S] Regulation of Shipping. 447 

195. Regulation of Shipping. 

From the earliest days of the colonies, America has had a 
large trade with other countries, and this trade was never so 
flourishing and abundant as now. The federal constitution 
wisely placed the whole control of foreign commerce in the 
hands of Congress ; and this power extends to the means of 
transport, to the movement of persons, and to the commodi- 
ties carried, and is enlarged by federal jurisdiction over admi- 
ralty cases, and by the exclusion of the states from tonnage, 
and import duties, or export duties, other than for inspection. 

Except across the Mexican and Canadian borders, all our 
commerce must be carried on by vessels ; and in four ways 
Congress has protected American shipping, (i) It has laid 
discriminating tonnage duties. The tax was at one time eight 
times as much on foreign vessels as on home vessels ; it is now 
on the two classes 3 and 6 cents a ton, not to exceed a total 
of 15 or 30 cents a year. (2) An act of 1793 prohibits for- 
eign vessels from engaging in coasting trade ; and a Supreme 
Court decision of 1901 held that trade with the dependencies 
was also coasting trade. (3) Duties on materials for ship- 
building are remitted, if the ships are to be used in foreign, or 
in Atlantic and Pacific, trade. (4) The duties on imports are 
somewhat increased if carried in vessels of a nation with which 
the United States has no agreement against discriminating 
duties. 

In order to get the advantage of these and other privileges, 
a vessel must be built within the United States and must be- 
long wholly to a citizen or citizens of the United States, and 
the officers must not be subjects of any foreign states. A for- 
eign vessel wrecked on the American coast may receive an 
American register, if the repairs amount to three fourths of 
the value; and in 1892 Congress passed a special law author- 
izing the registry of two large foreign-built steamers, the New 
York and the Paris, for the American Line. These restric- 
tions are sometimes evaded : occasionally a New England 



44^ Foreign Commerce. [§ 195 

fishing vessel puts to sea with an American captain and a 
Canadian cook, but when off soundings the cook commands 
the vessel and the nominal captain cooks the meals. 

The actual tonnage of American vessels is enormous, for it 
includes the Great Lakes and coastwise trade as well as the 
transoceanic. In 1789 there were 201,000 tons; in 1809, 
1,350,000 tons, or about seven times as much; in 1839, ^^^^ 
2,000,000 tons; in 1861, 5,500,000 tons, which was the high- 
water mark for 40 years; but in 1902 there were 5,800,000 
tons. Yet the proportion of tonnage engaged in foreign trade, 
which till 1809 was two thirds of the whole, has steadily 
diminished, and in 1902 was only 900,000 tons out of 5,800,- 
000 tons. At one time the United States carried over eight 
tenths of all our foreign imports and exports ; it now carries 
less than one tenth. 

The reasons for these changes are many, (i) Until about 
1870 the model craft of the world was the wooden sailing ship, 
which could be produced more cheaply from the great Ameri- 
can forests situated near tide-water than anywhere else in the 
world : when iron ships began to come in, they could be built 
more cheaply in England, where ore and coal lay near the 
seaboard. (2) In both coastwise and foreign trade, steam 
tonnage is now greater than sail tonnage ; and until within a 
few years the English have been the most successful designers 
and builders of marine engines and boilers, and have de- 
veloped the triple and quadruple expansion engines, with 
great saving of fuel. (3) The tariff upon ship-building ma- 
terials has made it difficult to build American ships for sale 
abroad, or to compete with foreign steamers in foreign trade. 
(4) American ships carry larger crews and pay rather higher 
wages. In 1902, however, there was a consolidation of Amer- 
ican ship-building concerns, with the likelihood that they will 
begin to build ships on a large scale in competition with the 
world. 

The government aids shipping by enacting rules of the road 
at sea, in accordance with codes drawn up by international 



§ 195] Regulation of Shipping. 449 

conferences. The pilots are licensed and pilotage controlled 
by the states, except that pilots on coastwise steam vessels are 
commissioned by the United States, and such vessels are not 
liable to state pilot charges. The United States builds and 
maintains a magnificent system of lighthouses, buoys, and 
light-ships ; it has surveyed the whole coast of the conti- 
nental area, and publishes seamen's charts ; it has an elab- 
orate life-saving service, which patrols the coast, warns vessels 
off dangerous shores, and, in case of wreck, by life-boats and 
life-lines attempts to save the passengers and the cargo. 

To prevent smuggling, an elaborate system of federal legisla- 
tion provides for the formal entry and clearance of vessels ; 
and all American vessels must be registered, and must carry 
special forms of enrolment for coasting and fishing purposes. 
The government also requires vessels to carry regular ship's 
papers, setting forth registry, port of departure, port of des- 
tination, owners, officers, and so on. Another series of stat- 
utes looks after the seamen, prescribing how they shall be 
shipped, how their wages shall be paid, and what their food 
and treatment shall be. 

The most hotly-conlested question with regard to American 
shipping is that of subsidies. Besides certain bounties granted 
to fishermen for the purpose of keeping up a nursery of Amer- 
ican seamen for time of war, there have been three epochs 
of steamship subsidies, (i) From 1847 to about 1858 the 
Collins Line of American-built wooden steamers received for 
a time $858,000 a year for bi-monthly service to Liverpool, 
and the Bremen Line got $200,000 a year for monthly service. 

(2) From 1866 to 1876 the Pacific Mail Steamship Company 
received $500,000 a year for trips to China and Japan. 

(3) An act of 1891 was intended to build up a fast line to 
compete with the British White Star and Cunard Lines, and 
also to stimulate trade with South America. Subsidy-earners 
were divided into four classes, earning from 66 cents to $4 per 
mile of outward voyage ; and under this contract an average 
of $700,000 a year has been paid since the inauguration of the 

29 



45 o Foreign Commerce. [§ 196 

system. By the introduction of bills into Congress in 1901, 
an attempt was made to provide a general system of subsidy 
which would absorb about ^9,000,000 a year for an indefinite 
period. 

The arguments for a subsidy are : — ( i ) That it is not 
creditable to the United States to permit other people to carry 
its commerce. This argument of course applies equally to 
the other end of the line, and would at most call for an equal 
division of the trafi&c. (2) That a subsidy will act as a pro- 
tective duty to both ship-building and ship-owning. It is, 
however, difficult to see that profitable lines now owned by 
Americans would make the country any richer by taking 
American registers. The great shipping combination of 1902, 
under the direction of Mr. J. P. Morgan, expected the 
business of ocean transportation to be profitable without a 
subsidy. 

196. Regulation of Immigration. 

The statutes on shipping contain elaborate provisions for 
passengers, and especially for steerage passengers, who once 
were shamefully crowded and ill treated. Since 1855 every 
passenger vessel, foreign or American, must assign sufficient 
cubic space for each person, and must allow suitable provi- 
sions. There is also a special system of inspection of steam 
vessels in order to prevent loss of life from defective con- 
struction or from explosions ; and there are laws requiring 
life-preservers, boats, and other protections for passengers. 
These regulations apply to vessels leaving the United States as 
well as to those arriving, but there is a special system of law 
applied to immigrants. 

In 182 1 Congress required every vessel entering port to 
report the number of alien passengers, and after 1856 to make 
a separate return of those who intended to make their homes 
here ; otherwise, with the exception of the Alien Acts of 1 798 
for the expulsion of foreigners, no law limiting immigration 
was passed until 1S62. The temporary foreign visitors are 



§ 196] Regulation of Immigration. 451 

now about 20,000 every year. Of permanent immigrants there 
were about 8,000 in 1820, 84,000 in 1840, and 428,000 in the 
great year of 1854. During the Civil War, immigration fell 
off; but in 1866 it began on a large scale, and in the record 
year 1882 789,000 foreign immigrants were registered as enter- 
ing the country. In 1898 this number fell to 229,000, but in 
1902 it was 649,000. In the decade from 1892 to 1902 about 
3,800,000 foreigners settled in this country. 

Relatively to population, the present number of immigrants 
is about a half what it was sixty years ago ; and the railroads 
make it easier to distribute 600,000 in 1902 than 100,000 in 
1842. The serious matter is that there are now fewer immi- 
grants from England, Scotland, English Canada, Germany, 
Holland, and the Scandinavian countries, — that is, from the 
people most like the native Americans and hence easiest to 
amalgamate, — while there is a great increase in those from 
Italy, the Russian empire, and Austro- Hungary, the people V 
most remote from our way of thinking. The English immi- 
grants were 82,000 in 1882, and 14,000 in 1902 ; the Germans 
were 207,000 in 1854, and only 28,000 in 1902 ; the Scandi- 
navians were 105,000 in 1882, and 54,000 in 1902; the 
Italians were 3,000 in 1876, and 178,000 in 1902. 

The change of quality in the immigrants, and a prejudice 
against the coming in of workmen to compete with those 
already on the ground, have led to various attempts to restrict 
immigration, (i) In 1862 Congress dealt with coolie immi- 
gration, especially the Chinese. (2) In 1882 was passed an 
immigration act prohibiting the coming in of idiots, lunatics, 
convicts, and persons likely to become charges on the public. 
(3) In 1885 came the Alien Contract Labor Act, which made 
it unlawful for persons to enter the United States if under con- 
tract to perform labor here when they arrived ; exceptions 
were actors, artists, lecturers, singers, domestic servants, and 
workmen skilled in new industries. This act has been difficult 
to execute, because a contract laborer does not wear a badge 
to distinguish him ; and attempts have been made to shut out 



452 Foreign Commerce. [§ 196 

clergymen and professional musicians on the ground that they 
were contract laborers. (4) In 1882, in defiance of the 
existing treaty, Congress passed an act prohibiting Chinese 
laborers of any kind from coming in. (5) In 189 1 an immi- 
gration act was passed prohibiting polygamists and diseased 
persons from landing ; and an official, " the superintendent of 
immigration," was put in charge of the service. (6) Many 
people having taken alarm at the continued immigration of 
foreigners, in 1897 a law for the exclusion of adults who could 
not read and write, at least in their own language, passed both 
houses of Congress, and was vetoed by President Cleveland. 
(7) In 1882 there was imposed a tax on immigrants of 
50 cents per head, which was raised to ^i in 1894 and to $2 
in 1903. (8) In 1903 the immigration of anarchists was 
prohibited. 

The apparent effect of these various laws is not great : in 
1902 the exclusions were : convicts, 9 ; insane, 27 ; idiots, 7 ; 
paupers, 3,944; contract laborers, 275; diseased, 709; other 
causes, 3 ; total, 4,974. The real effect is much greater : first, 
because unfit persons hesitate to incur the long voyage with a 
prospect of exclusion ; and, secondly, because the steamships 
must carry excluded persons back at the expense of the 
owners, and hence they are active to keep out people who are 
likely to be thrown back on their hands. In practice, the 
test that a man shall be able to take care of himself is that 
he shall have fifteen dollars in his pocket ; and friends in the 
steerage often combine to form a pool, so that nobody shall 
be devoid of this necessary sum. 

Really effective has been the prohibition on Chinese immi- 
gration. Beginning about 1855, 3,000 or 4,000 Chinese came 
in every year until 1868, when large numbers were imported 
to work on the Central Pacific Railroad ; then the numbers 
began to increase, and in 1882 the immigration was 40,000. 
Congress then interposed, with the result that in 1885 only 
22 Chinese were recorded as entering the country, and from 
1880 to 1900 the total number of Chinese here decreased by 
16,000. 



§197] Movement of Foreign Commerce. 453 

The reason for the exclusion of the Chinese was partly the 
prejudice of European laborers on the Pacific coast, who 
disliked the competition ; partly the demand of nearly the 
whole community on the Pacific slope ; and partly the con- 
viction of Congress that a large immigration would ultimately 
lower the scale of living and unfavorably affect the lowest 
stratum of the white population. The Chinese already in the 
country form useful household servants and laborers and 
laundrymen ; but all experience goes to show that, although a 
very habile people, they have so different a mode of thought 
and so different a social organization that they never could 
become a permanent part of an American community. The 
legislation of Congress has saved the Pacific Coast from a 
social difficulty akin to the negro question in the Southern 
States. 

197. Movement of Foreign Commerce. ^ 

One of the principal reasons for establishing the American 
colonies was to furnish an outlet for European trade. As the 
colonies had very few manufactures, they always depended on 
Europe and especially on England for fine clothing, for manu- 
factures of metals, and for many other commodities. Their 
only means of paying for these importations was by exporta- 
tions of domestic produce, especially timber, fish, grain, 
tobacco, and pig-iron. A lively, though usually a forbidden, 
trade to the Spanish and French West Indies brought hard 
specie, which helped to adjust balances with England. 

After the Revolution the United States became a heavy 
exporter of food products, and during the Napoleonic wars a 
large commerce was built up, in which the imports usually far 
exceeded the exports. For instance, in 1810 we imported 
$61,000,000 and exported $42,000,000; the difference prob- 
ably represented the earnings of the American shipping trade. 
Then came a period of heavy loans from abroad, which really 
came in the form of excess of imports over exports. In the 
forties and fifties, considerable trade balances were for the 



454 Foreign Commerce. [§ 197 

first time established in our favor, wiiich meant that the old 
debts, public and private, were being paid. Up to 1850 the 
combined exports and imports were not over ^300,000,000 in 
anyone year; but they began to run up, and in i860 were 
$700,000,000. 

The development of the internal railway system now made 
it possible to bring forward immense quantities of breadstuffs 
and other commodities from the interior; and a new and 
enormous export business was built up in kerosene. Hence, 
from 1876 to 1902 there has been only four years when the 
trade balance was not in favor of the United States. In 
1882 the combined export and import trade reached $1,500,- 
000,000; and in 1902 it was $2,300,000,000, of which 
$1,400,000,000 were exports and $900,000,000 were imports. 

From the beginning. Great Britain has always been our best 
customer, taking $549,000,000 in 1902; Germany is now 
second in importance, taking $173,000,000; next come the 
British provinces, with $1 1 1,000,000, and France with $72,000,- 
000. We imported in 1902 $166,000,000 from Great Britain, 
$102,000,000 from Germany, and $83,000,000 from France. 
The exports to Central and South American countries, all 
told, are less than $100,000,000, and the imports about 
$170,000,000. The export trade to the various parts of 
Canada is worth more than to all the rest of America, exclud- 
ing the West Indies. 

The most important exports are (i) raw cotton, of which 
we sent out $291,000,000 worth in 1902; (2) breadstuffs, 
principally corn, wheat, and wheat flour, to a value of $213,- 
000,000 ; (3) provisions of various kinds, to a value of $200,- 
000,000, or, if live cattle be added, about $230,000,000; 
(4) manufactures of iron and steel, $99,000,000; (5) oil, 
about $72,000,000. Of late years there has been a great 
increase in the export of general American manufactures, 
amounting, besides the articles already mentioned, to about 
$200,000,000. Of" the imports the largest items are cloth- 
ing and materials for clothing, about $100,000,000; coffee, 



§197] Movement of Foreign Commerce. 455 

$71,000,000; chemicals, $58,000,000; hides, $58,000,000; 
sugar, $55,000,000. 

How is the surplus of exports over imports to be paid ? In 
part by the expenses of the 120,000 annual American travel- 
lers abroad, probably amounting to $100,000,000 a year; a 
part of the surplus goes into ocean freights ; and foreign 
investments in American railroads and other securities have 
been transferred westward to help the balance. Yet enormous 
sums remain to our credit abroad, which are practically a 
capital controlled by American owners: for instance, in 1902 
an American obtained large concessions for building new trac- 
tion lines in London, the money for which was the proceeds 
of exports. 

A new movement of commerce seems Hkely to spring up 
with the Pacific. In 1902 our exports and imports with China 
were $25,000,000 + $21,000,000 ; with Japan, $21,000,000 + 
$38,000,000 ; with British Australasia, $28,000,000 + $5,000,-. 
000. The trade to the Philippine Islands was about $5,000,- 
000 -f $7,000,000. In all, the Pacific region and Asia received 
about $98,000,000 from us, and sent about $144,000,000 to 
us. If China can develop her internal resources and build 
railroads, this trade may be many times multiplied ; and it is 
with ultimate reference to the Asiatic trade that the United 
States took over the Philippines. Trade with our American 
neighbors might also be increased : Central and South America 
have a total trade of nearly $1,000,000,000, of which at 
present we do not get one fourth. 

It will be noted that the extension of American commerce 
depends upon the tariff policy of the country. If a high tariff 
is necessary in order to maintain domestic manufactures, that 
result can be gained only by diminishing foreign trade, for 
true protection prevents the importation of foreign goods; 
and since in the long run our exports must be paid for by 
imports from abroad, whatever diminishes imports must in the 
end cut down our market, A high tariff also provokes re- 
prisals from other nations, which take steps to check impor- 



45^ Foreign Commerce. [§ 198 

tations from America, either by laying high duties or by 
passing vexatious inspection laws. 

198. Onr Commercial Neighbors. 

The problem of foreign commerce depends upon many 
factors, of which a chief one is the method of transporta- 
tion. A century ago the approved type of merchant vessel 
was a heavily-rigged sail craft, of from 200 to 600 tons, 
owned by a private firm, or frequently by the country mer- 
chants and farmers who built her ; and she went wherever 
she could find a cargo. As there was no telegraph, and 
mails were slow, the captain or the supercargo had large 
discretion in buying and selling. Later on, regular packet 
Unes were established despatching ships at stated intervals; 
and in the great days of the American chpper ships, in the 
fifties, those regular lines reached to Australia, China, and 
California, as well as to England and the continent of Europe. 
Sailing voyages are recorded of fourteen days from land to 
land across the North Atlantic. 

These sailing ships have been partly superseded by steam 
vessels : the Cunard Line in 1840 set up a regular bi-monthly 
service from Boston to Liverpool, and lines were slowly estab- 
lished from Baltimore, Philadelphia, and New York. Soon 
appeared steamers, now generally called *' tramps," which, 
like the sailing ships, carried cargoes wherever they could find 
them. In the course of the years since the Civil War, the 
regular steamship lines have enormously expanded, till some 
of them despatch three or four steamers a week. The owners 
of the Pennsylvania Railroad and the Standard Oil Company 
have established three lines of steamers, — the American Line, 
the Red Star Line, and the Atlantic Transport Company, — 
which of course are more likely to get full cargoes than if they 
were not directly connected with exporting and transportation 
companies. In 1902 a consolidation of seven or eight of the 
largest ocean lines was brought about, with the expectation 
that economy of service could be gained by common and 



§ 198] Our Commercial Neighbors. 457 

intelligent ownership. The tramp steamer, which represents 
the old type of progressive and independent business, is now 
actually derided and treated as a poacher in the domain 
of foreign commerce ; but as long as the high seas remain 
free the tramps will always exist to keep up competition in 
transportation. 

The development of steamships much affects our commer- 
cial relations, because the improved and fast vessels bring the 
countries of the earth much nearer to us in time and expense 
of transit, especially in the great current of commerce from 
the eastern coast of the United States to the western coast of 
Europe. With the large steamers of to-day, however, foreign 
trade is concentrated in the few harbors which can admit 
deep-draft vessels ; hence Portland, Boston, Philadelphia, 
New York, Baltimore, Newport News, Charleston, New Or- 
leans, and Galveston get almost the whole of the transatlantic 
trade. Conditions are similar on the other side of the water : 
Liverpool, Southampton, London, Havre, Antwerp, Rotter- 
dam, Bremen, and Hamburg receive most of the American 
trade, except the rapidly-growing commerce into the Mediter- 
ranean. The countries bordering on those ports must be our 
best customers, and with them we should cultivate friendly 
commercial relations. 

In America our nearest commercial neighbors are the West 
Indies. Porto Rico is ours, and Cuba is a protectorate of the 
United States ; the Island of Hayti is politically so disturbed 
that its trade is now of little account ; Jamaica is the only 
other considerable West India island, and the United States 
Senate declines to ratify a reciprocity treaty in behalf of that 
island. Mexico is reached from the United States by land as 
well as by sea : the railroads of that country have been con- 
structed by American capital, and it is practically a com- 
mercial dependency of the Union ; as Mexico develops, the 
United States is likely to get more and more of its trade. 

The Central American states are capable of a valuable coffee 
and sugar and fruit trade, but are subject to revolutions and 



458 Foreign Commerce. [§ 198 

earthquakes, and have no sufficient railroads. The South 
American countries are very distant : Rio de Janeiro is nearly 
twice as far from New York as is Liverpool ; and, until the 
Panama Canal is constructed, the west coast of South America 
is almost as far away as New Zealand. The United States has 
shown no strong desire to encourage trade with any of those 
countries by reciprocal reciprocity agreements. 

Upon the northern border of the United States lies the 
Dominion of Canada, which has water connections from the 
maritime provinces to the coast of New England and New 
York, and a common boundary about 3,500 miles long. 
Trade with Canada has always been heavy, and from 1854 
to 1866 was regulated by a special reciprocity treaty, under 
which it greatly increased; but since 1866 the trade has 
been subject to the same restrictions as that of other coun- 
tries. The Canadian Pacific railroad system crosses the state 
of Maine, and an American system crosses Ontario from 
Buffalo to Detroit. There is a very free movement of popu- 
lation across the border from French Canada into New Eng- 
land, and from the Northwestern states into the Canadian 
Northwest. The very nearness of Canada, however, has always 
brought about boundary trouble and commercial jealousies, 
and the two countries are not very neighborly. 



CHAPTER XXV. 
WAR POWERS. 
199. References. 

Bibliography: A. B. Hart, Manual (1908), §§ 121, 122, 227, 298; 
E. yicCXdLm, Constitutional Law (1905), § 108; Channing and Hart, 
Guide (1896), §§ 22, 164, 172, 194, 207, 213. 

Army and Navy : T. A. Dodge, in N. S. Shaler, United States (2 vols., 
1894), I, ch. xi; A. B. Hart, National Ideals {Am. Nation, XXVI, 1907), 
ch. xviii ; L. D. Ingersoll, War Department (1879); E. S. Maclay, 
United States Navy (3 vols., enlarged ed., 1902) ; T. Roosevelt, Strenuous 
Life (1900), 167-188; A. P. Hovey, Soldier's Rights (3d ed., 1890); 
E. H. Hall, l7idigiiity to our Citizen Soldiers, in Discourses (\%()^, No. 9; 
W. H. Glasson, Militaiy Pension Legislation (1900) ; E. C. Mason, Veto 
Power (1890), §§ 71-81. — Sources: Memoirs of Winfield Scott (1864); 
U. S. Grant (1885); W. T. Sherman (2d ed., 1885); P. H. Sheridan 
(1888) ; J. E. Johnston (1874) ; J. M. Schofield (1897) ; James Longstreet 
(1896); S. R; Franklin (1898); C. King, Campaigning with Crook (1890); 
biographies of military and naval commanders ; Annual Reports of the 
Secretary of War, Secretary of the Navy, Secretary of the Interior, and 
their subordinates ; veto messages in J. D. Richardson, Messages of the 
Presideitts (1896-1899), especially in 1885-1889, 1893-1897. — Periodicals: 
Army and Navy Journal ; United Service. 

Making War: W. Whiting, War Powers (1871); W. A. Dunning, 
Essays on the Civil War and Reconstruction (1898), 1-62; J. B. Moore, 
Digest of Inter7iational Law (8 vols., 1906), VII, §§ 1100-1221 ; The 
American Nation (27 vols., 1904-1908), chapters in the successive 
volumes on the American wars ; treatises on the Constitution and on 
international and military law ; military and naval histories ; reports of 
the War and Navy Departments ; general histories on the wars of the 
United States ; military maps may be found through A. B. Hart, Manual^ 
§ 26, and Channing and Hart, Guide, § 21. 

200. History of American "Wars. 

The most serious and disturbing relation between nations is 
war. To the national government are committed the great 
powers of raising armies and navies, declaring war, and adjust- 
ing the results by treaties of peace. The states are absolutely 

459 



460 War Powers. C§ 200 

prohibited from keeping troops or ships of war in time of 
peace, or from engaging in war unless actually invaded, — a 
case which has occurred only once, in 18 14. 

As soon as the colonies were founded, fierce conflicts began 
with the Indian tribes, and from 1620 to 1763 the colonies 
were engaged in all the contests of England with France, 
Spain, and Holland. The American nation was born in the 
midst of war, which the feeble organization of the Continental 
Congress managed to conduct to a successful end ; and in 
that war, for the first and last time in our history, we had a 
military ally. The wars of the United States since the Revo- 
lution have been of four kinds : Indian, external expeditionary, 
foreign, and civil. 

(i) About 1775 began the series of Indian wars, which 
were characterized by the usual Indian tactics of ambush, 
surprise, and torture of prisoners. Sullivan forever destroyed 
the power of the Iroquois in Central New York in the cam- 
paign of 1779. From 1790 to 1795 the Indians fought 
fiercely in the Northwest, and in 1791 St. Clair's army was 
all but annihilated. In 1 8 1 1 came the most dangerous Indian 
war in our history, — Tecumseh's league on the northwestern 
frontier, — in which the battle of Tippecanoe was won by 
General Harrison. General Jackson was engaged from 1815 
to 1818 in wars with the Creeks of the Southwest. In 1832 
came the brief Black Hawk War in the Northwest ; and in 
1835 began the long and costly Seminole War, in which 
about 100 Indian warriors defied the whole United States. 

The great movement across the plains, beginning in 1849 
and culminating in the completion of the Pacific Railroad in 
1869, brought the people of the United States into hostile re- 
lations with tribes theretofore little known. In 1862 came the 
Sioux outbreak in Minnesota, which for a short time threatened 
to sweep the whole frontier. There was repeated fighting on 
the Upper Missouri River; and then came, in 1873, the won- 
derful campaign of the Modoc Indians, who for a long time 
held their own against forces twenty times their number. 



§ 2oo] American Wars. 461 

The last Indian tribes to make a determined resistance were 
the Apaches in New Mexico and Arizona, and they were 
finally subdued in 1886. From 1899 to 1902 a very similar 
epoch of war with dependent races went on in the Philippine 
Islands. 

Altogether the Indian wars, many of which might have been 
avoided by greater tact and a more rigid sense of justice, have 
cost probably ^200,000,000 and 10,000 lives of white troops ; 
but it is difficult to see how a fierce and warlike race, prime 
owners of the soil, could ever have been brought within the 
peaceful control of the government without a good deal of 
hard fighting. The Indians are now so broken up into small 
masses, and so surrounded with white population, that further 
wars are impossible. 

(2) The United States has first and last engaged in about 
fifty armed military expeditions outside its own boundary. 
West Florida, East Florida, Texas, and California, all saw 
hostile American troops before they were annexed. Naval 
expeditions have been repeatedly sent to the Pacific islands, to 
Central and South America, and to Eastern Asia, usually as 
substitutes for regular military operations, in order to obtain 
settlement of controversies. 

(3) Of foreign wars, the United States has had six : the 
War of the Revolution with England, resulting in inde- 
pendence; the two naval wars, — with France from 1798 to 
1800, and with the Barbary Powers from 1802 to 1805 ; the 
War of 18 1 2 with England, the most humiliating episode in 
our national history; the aggressive Mexican War of 1846, 
the purpose and result of which was the annexation of Cali- 
fornia; the war with Spain, lasting from April to August, 
1898,. which brought about the cession of Porto Rico and the 
Philippines and the independence of Cuba. 

(4) Most terrible of all our wars was the Civil War, v/hich 
lasted from 1861 to 1865, and, at an expense of ^7,000,000,000 
of property and about 700,000 lives, established forever the 
principle that the United States is one nation. 



462 War Powers. [§ 201 

201. The Army. 

Of the two branches of the service, the army has always 
been the more important, because more numerous than the 
navy, because the only force available for fighting the Indians, 
and because in the four protracted wars — Revolution, War of 
181 2, Mexican War, and Civil War — the decisive actions 
were on land. At the head of both army and navy is the 
president, who is titular commander-in-chief, though no presi- 
dent has ever actually taken the field at the head of an army. 
He exercises his power by designating officers to particular 
commands, and by giving them instructions. Under the 
president, the civil head of the administration is the secretary 
of war. Contrary to continental practice, our minister of war 
is almost never an army officer ; and in several cases, as in 
1 8 14 and i860, he has been obliged to resign from want of 
practical experience in the profession. 

The body of officers in the army are appointed by the 
president and confirmed by the Senate. The military school 
at West Point has sometimes been insufficient to supply the 
need, and lieutenants and even higher officers have been ap- 
pointed directly out of civil life ; in many cases men are pro- 
moted to commissions from the ranks. In time of war large 
numbers of officers have to be commissioned, and appoint- 
ments are then made out of the officers of militia regiments, 
or directly out of civil life. 

During peace it is the tradition that officers shall be pro- 
moted as vacancies occur, so that any lieutenant who lives 
long enough and does not get court-martialled may become 
a colonel, or, if selected by the president, a brigadier-general or 
a major-general. Indeed, army officers have a fixity of tenure 
not given to other executive servants : by an act of 1866 it is 
provided that no army or navy officer shall be removed in 
time of peace except by court martial. Nevertheless, if the 
president appoints and the Senate confirms another man to fill 
the same position, the previous incumbent is thereby removed ;^ 



§ 2oi] The Army. 463 

and in time of war the president may summarily remove, 
subject to later investigation. In peace, resignations are 
accepted unless made to avoid court martial. During war, 
resignations are frequently denied ; but at the beginning of 
the Civil War about one half of all the military and naval 
officers resigned their commissions because southerners. 

Inasmuch as vacancies by death and resignation are few, 
an officer may not get above a captaincy till he comes to be 
fifty years old. In the army, by acts of 1861 and 1862 and 
subsequent amendments, the president must retire from active 
service any officer who is sixty-four years old, and may retire 
an officer who has served forty-five years or is sixty-two years 
old ; and any officer may demand retirement when he has 
been forty years in the service, or has become disabled, and 
may request retirement after thirty years of service. 

In the navy compulsory retirement comes, except for the 
admiral, when an officer is sixty- two or has served forty-five 
years, and retirement may be requested after forty years of 
service. Further, the law of March 3, 1899, provides that -if 
the vacancies in any year are below a certain number in each 
grade, the president selects from those officers of the rank of 
captain and below who desire retirement, or orders the invol- 
untary retirement of such officers of the rank from captain 
to lieutenant as are pronounced by a board of rear-admirals to 
be most unfit for active service. This measure is intended to 
provide for the proper promotion of the best officers, by weed- 
ing out the least efficient. Officers thus retired receive the 
rank of the next higher grade. Retired officers, during the 
remainder of their lives, receive three fourths of the pay of their 
rank at retirement. In many cases the disability is not such as 
to prevent service in other capacities, so that retired army and 
navy officers are often active business and professional men. 

The grades of officers are general and lieutenant-general 
(titles which have been given as honorary distinctions to men 
of the highest service, such as Winfield Scott and U. S. 
Grant), major-general, brigadier-general, colonel, lieutenant- 



464 War Powers. [§ 201 

colonel, major, captain, first lieutenant, second lieutenant. 
The pay runs from ^13,500 a year for a general, down to 
$1,400 for a second lieutenant of infantry. Quarters are fur- 
nished for officers and their families, and there are some other 
privileges which reduce personal expenses. 

The army of the United States numbered but a few hundred 
men in 1789, and has remained small except during actual 
war. In 1898 it was only 26,000 men and 2,175 officers, a 
number barely sufficient for garrison duty and for keeping 
order. After the Spanish War, by an act of February 2, 1901, 
the army was fixed at 3,820 officers and not to exceed 
100,000 men. In 1903 there were 65,000 enlisted men. 
There are now i lieutenant-general, 7 major-generals, 24 briga- 
dier-generals, and 102 colonels, besides about 100 officers 
retired with the rank and retiring allowance of a lieutenant- 
general, major-general, or brigadier-general. 

The army is recruited out of men between the ages of 
eighteen and thirty-five, who satisfy a severe physical exami- 
nation and are more than 5 feet 4 inches high. The material 
coming forward is on the whole good ; and foreign officers 
who have observed American troops in the field usually praise 
their intelligence and courage, and approve the discipline. 
Life upon small frontier posts is very trying to both officers 
and men, and in time of peace desertions are alarmingly 
numerous. The pay of private soldiers is $13 a month, rising 
to $16, in addition to barracks and food. The actual cost of 
maintaining a full regiment of 1,000 men for a year, including 
pay of officers and men and the expense of administration, 
is about ;^ 1, 000,000, which is five times the cost of a Ger- 
man regiment of the same size. 

The ordinary peace duty of the army is to garrison the mili- 
tary posts and fortifications, nearly all of them on the seacoast ; 
to protect government officers and property in Washington 
and elsewhere ; and, above all, to act as a reserve force in case 
of riots and insurrections which the state authorities cannot 
manage. The army and navy are governed by elaborate 



§ 2oi] The Army. 465 

codes called Articles of War, and " Regulations " which deal 
with organization and discipline, prescribe rules for behavior 
in the field, contain humane provisions for the benefit of non- 
combatants, and provide for courts martial (the death penalty 
to be applied only with the specific approval of the president). 

One of the problems in both military and naval service is 
the distinction between the staff and the line. Modern 
armies and navies, especially the German, have a special 
branch of the service called the " general staff," which has 
centralized control over all the administrative services, such 
as commissariat, transportation, ordnance, clothing, medicine 
and hospital, and intelligence. In Berlin, young officers are 
selected by fierce competition, and then are specially trained 
for this important service. The German general staff also 
works out, in advance, plans for every conceivable campaign : 
for any contingency, the necessary orders for r ,;icentration 
of troops on the frontiers are already written, and on forty- 
eight hours' notice large bodies of organized troops would be 
on their way to meet the danger. 

The administrative system of the .United States army has 
been inferior in two respects, (i) The different branches 
were placed under bureaus independent of each other : for 
instance, the commissary-general had to provide supplies, but 
could not compel the head of the transportation department 
to carry them. (2) The "staff officers" are not trained es- 
pecially for their posts, but are detailed out of the "line," — 
that is, out of the ordinary service, — and usually serve but a 
few years in their administrative posts. Every war in which 
the United States has been engaged, and especially the 
Spanish War, has shown the folly of this system : line and 
staff officers are jealous of each other; staff appointments 
are coveted, and poHtical pressure is often used to secure 
them ; and neither the secretary of war nor the head of the 
fighting forces has sufficient control over the administrative 
part of the army. 

30 



466 War Powers. [§ 202 

By an act of February 14, 1903, a general staff was at last 
created. The staff of forty-five officers, detailed from the 
army at large, is to prepare plans of defence and mobiliza- 
tion, investigate and report on the efficiency of the army, 
coordinate the action of the different departments, render 
professional aid to the superior officers, and perform such 
other military duties as the president may require. The chief 
of staff has supervision over both the line and staff, and has 
in general, with an enlargement of powers, the duties of the 
commanding general. 

A part of the American military and naval staff is an intel- 
ligence department, of which the public naturally knows little. 
As an incident of such a collection of information, it is the 
habit of the government to send officers as military attaches 
to our foreign legations, that they may pick up new ideas. 
Unfortunately, American officers are often detailed who can- 
not speak the language of the country to which they are sent, 
and hence are not in a position to improve their opportuni- 
ties. When war breaks out anywhere in the world, it is also 
common to send some distinguished American officer to ob- 
serve it on the ground : in 1871 General Sheridan went to 
France, and in 1878 General Hazen to the Russo-Turkish 

War. 

202. The Navy. 

The navy is in many respects a very different service from 
the army, principally because the tactical unit of the navy is a 
ship, which must be kept up, coaled, drilled, and exercised in 
time of peace exactly on the same footing as in time of war. 
A second difference is that the conditions of naval warfare 
in the last forty years have radically changed, and the navy 
has responded to the new necessities. 

During the Revolution, Congress succeeded in fitting out 
several small squadrons, but there was no permanent organ- 
ized navy; most of the fighting at sea was done by priva- 
teers, which were ordinary merchant vessels transformed into 
cruisers. After the Revolution was over, the United States at 



§ 202] The Navy. 467 

one time had not a single armed ship on the ocean. Con- 
struction began in 1794, and in the war with France in 1798- 
1800 there were a few ship duels. The new vessels were very- 
serviceable in the war with the Barbary pirates (i 802-1 805), 
and during the War of 18 12 the Constitution, the Constella- 
tion, the United States, the Essex, the Enterprise, and the 
little Wasp showed that they could successfully fight British 
vessels of their class; but until after the War of 1812 the 
United States never possessed a single one of the great three- 
decker ships of the line, which were the standard battleships 
of that time. 

The American navy remained small, and when the Civil 
War broke out we had not half a dozen first-class steam 
cruisers ; and one of the best of these, the Merrimac, was 
transformed into the Confederate ironclad, the Virginia, which 
began to destroy our wooden fleet, and was successfully resisted 
in 1862 by the little iron Monitor. This duel led to a new 
era in naval architecture : we built a fleet of river gunboats 
and sea-going ironclads. After the war, the United States 
navy was again allowed to become antiquated. About 1883 
began the construction of vessels of a modern type ; and the 
United States has now, either completed or under construc- 
tion, a fleet of powerful ships, surpassed in number, guns, 
and men only by those of Great Britain, France, Russia, 
and Germany. 

The general organization of the navy is similar to that of 
the army : the officers are appointed, commissioned, and 
retired in the same way, though the number is smaller. 
There are now i admiral and 24 rear-admirals, besides 58 
rear-admirals on the retired list, and 5 ofificers retired as com- 
modores ; then come captains, commanders, lieutenant-com- 
manders, lieutenants, lieutenants (junior grade), and ensigns; 
besides ofificers of the medical, pay, and engineer corps, and 
various ofificers of construction and instruction employed on 
shore duty. The pay of ofificers ranges from ^13,500 for 
admirals down to $1,400 for ensigns ; the pay of seamen 



468 War Powers. [§202 

varies according to age and experience, from $35 per month 
for firemen of the first class, to $g for apprentices of the third 
class. About 70 per cent of the enlisted force in the navy 
are native-born, and about 90 per cent citizens of the United 
States. At present the authorized strength of the navy is 
about 29,000 men and 1,676 officers. 

The largest and most powerful vessels of the navy are of 
the Maryland and Pennsylvania type, each to carry 777 men 
and 45 officers ; and of the Oregon and Kearsarge type, with 
armor up to 18 inches thick. Such a vessel ready to receive 
its men costs from $5,000,000 to $6,000,000. The vessels in 
commission December i, 1901, were about 100, of which 20 
or more were powerful battleships. 

Administratively the navy is better organized than the army. 
During the Spanish War, the secretary of the navy designated 
the so-called " Board of Strategy," which was a council of 
naval officers of distinction acting as a general staff for the 
discussion of naval movements. Its place is now taken by a 
permanent " General Board." 

Both army and navy make special details of officers, not 
only for staff" service, but for a variety of inspection services 
away from commands. The navy details are mostly for shore 
service. Many army and navy officers, at sea or detailed, 
carry on professional study, invent weapons and fortifications, 
and advance military science. 

In recent years a peculiar difficulty has arisen in the navy 
because a steam-fighting vessel, besides its engines, contains 
delicate machinery of every kind, — ammunition hoists, tor- 
pedo tubes, special engines for opening and closing shutters, 
for rotating turrets, and for handling coal. The care of such 
a complex vessel requires highly-skilled direction, for which 
the naval academy at Annapolis has for some years prepared 
engineers. These graduates knew little of ordinary sea duty ; 
on the other hand, the navigating officers, responsible for 
fighting a ship in action, might be wholly unable to judge 
whether the engines were in suitable condition for battle. By 



§ 203] Education of Officers. 469 

an act of March 3, 1899, Congress provided that all naval 
officers should have training both in seamanship and in en- 
gineering, so that they might be able to supervise both of 
these important parts of modern naval warfare. 

The functions of the navy are simple : about half the vessels 
in commission are sent to foreign waters for the protection of 
American interests, and render important service by explora- 
tions of various kinds ; and, in case of need, marines and 
" jackies " are landed in distant countries like China or Cen- 
tral America. Naval officers have more contact with the rest 
of the world than military officers : they constantly see new 
types of vessels and guns, and bring home new ideas ; three 
years is considered by the practice of the department long 
enough for sea duty, and then other officers are sent out ; the 
home squadrons move about from port to port, exercising the 
men, and making people acquainted with the service. 

203. Education of OfBcers. 

To provide the necessary body of educated officers, the 
federal government has founded several institutions. In 1802 
a military school was established at West Point, and has 
become one of the most effective places of its kind in the 
world. It has grown in numbers as the country has ad- 
vanced, has a large plant of buildings and necessary grounds, 
and has turned out several thousand excellent officers. The 
effectiveness of the school is shown by the fact that, in all 
the wars from 181 2 down, the graduates of West Point have 
come to the front : all the greatest commanders in the Civil 
War — Grant, Sherman, Thomas, Sheridan, Lee, A. S. John- 
ston, Joseph E. Johnston, and Stonewall Jackson — were West 
Pointers. Many graduates eventually get into civil life, and 
are much esteemed as civil engineers, administrators, and men 
of affairs. 

The cadets of West Point are appointed by the president, 
but under the law must be nominated by members of the 
House and Senate ; there is one for each congressional dis- 



47° War Powers. [§ 203 

trict and territory, besides two for each state, and thirty at 
large appointed by the president. Appointment means merely 
that a boy will be entered if he passes the somewhat severe 
entrance examinations. In 1902 482 cadets were authorized, 
and the school had about 425 present, but in 1903 the au- 
thorized number was increased for ten years to 511. 

Once admitted, cadets become officers of the United States 
army, and receive $540 a year as pay. They are organized as 
a military body, with cadet officers appointed for merit by the 
superintendent of the institution ; they have rigorous drill and 
thorough military discipline, besides annual camp experience 
for about three months. The teaching force is about seventy 
strong, partly of detailed officers and partly of permanent 
professors ; and the curriculum is narrow, but thorough. The 
constant effort of the instructors is to train the men to obey 
orders, and at the same time to bear responsibility and to 
speak the truth. About half of the students admitted cannot 
stand the pace, and drop out before the end of the four years' 
course ; those who persevere and graduate are all immediately 
commissioned as second lieutenants. 

The need of a similar school for the navy was long felt, and 
in 1845 George Bancroft, then secretary of the navy, designated 
certain officers to give naval instruction at Annapolis ; and 
thus without a law began the Naval Academy. It has since 
been organized by statute on about the same basis as West 
Point. Nominations are made by members of Congress, until 
1913 two for each senator, representative, and delegate, and 
two from the District of Columbia, while the president has five 
appointments at large each year. The course is six years, two 
of them at sea, and now includes training in engineering. 
Corresponding to the West Point camp is the annual cruise of 
the cadets. All the naval officers are graduates of the Naval 
Academy, except the few who have come in through the volun- 
teer navy, and a very few who have been promoted from the 
" warrant officers." The constant shifting about from one ship 
to another gives the naval officers personal acquaintance with 



§203] Education of Officers. 471 

each other, so that there is a much stronger tradition of com- 
mon education and of esprit de corps than in the army. 

An attempt at a kind of mihtary education has been made 
by the state agricultural colleges, which are required to keep 
up military drill ; but in most cases it is a perfunctory matter, 
affording no real military training. Private military schools 
throughout the United States accustom boys to military 
routine ; and graduates of those schools are likely to get 
commissions in the volunteer army in case of war. The 
government also maintains post-schools for the education of 
privates, especially those who cannot read or write. 

The highest institution of military training in the country is 
the Naval War College at Newport, founded by Admiral Luce 
in 1885. This institution, at the head of which is always a 
highly-experienced and competent naval officer, gathers every 
year about twenty-five of the best officers in the navy and 
marine corps for the practical study of naval problems ; they 
work out plans of campaign, and by the use of the "krieg- 
spiel" — a practical means of actually going through the 
details of a campaign on a small scale — they get a valuable 
training in the most difficult part of their profession, the dis- 
position of ships and troops in warfare. A similar Army War 
College was established in Washington in 1902. 

Next to a better organization of the staff, the greatest need 
of both army and navy is practical training in the handling of 
large bodies of troops. The technical unit of the army is the 
regiment of 1,000 men; but within the limits of the United 
States there is not a single post where a whole regiment is 
stationed. Gray-headed brigadier-generals have sometimes 
never seen a whole regiment together under their own com- 
mand ; and the Spanish War showed that men in command of 
brigades or divisions did not know how to handle 5,000 or 
10,000 troops, even in practice. What we need is to assemble 
every year 20,000, 30,000, or 40,000 troops on the plan of the 
foreign manoeuvres, to make long marches, and to go through 
sham battles ; and, since our future wars are likely to include 



472 War Powers. [§ 204 

operations beyond seas, the navy should be called on to con- 
vey animals, guns, wagons, tents, and other materials from one 
part of the coast to another. In this way, both branches of 
the service would get accustomed to the difficult operations 
of ferrying an army and landing in force. 

204. The Militia. 

The whole tradition of the United States is against a large 
standing army, because in the experience of mankind such 
armies have proved the bulwark of despotism : as late as 185 1 
Louis Napoleon made himself the emperor of the French by 
winning over the army. Hence the colonies had no permanent 
force of troops, but depended upon the able-bodied men of 
the community. In the Revolutionary War was made the 
first attempt to create a national army ; but the states dis- 
liked it, and most of the forces throughout that war were 
regiments enlisted and officered by the states. This system 
was continued by the federal constitution, which authorizes 
states to train mihtia according to the discipline prescribed 
by Congress, and to appoint officers. 

Technically, the militia, or citizen army, is made up of all 
the able-bodied men of the state, every one of whom is liable 
to military duty. A century ago, " training-day " brought out 
most of the men of the community ; they had a little military 
drill and a great deal of hard liquor. In the course of years 
the states have all given up any attempt to organize the whole 
body of available men, but keep up a few regiments, especially 
in the large cities. The organization is in many ways like that 
of a club : men join and resign much at their pleasure ; the 
minor officers are elected by the men, the higher officers are 
appointed by the governor or by a board of officers. In a few 
states, as Massachusetts and New York, there are regiments 
enough to make a brigade, and annual encampments are held, 
in which the men live in tents and have company and regi- 
mental drills and brigade evolutions. 

The main immediate service of the militia is, however, to act 



§ 204] The Militia. 473 

as a state police force on call of the governor in case of riot or 
insurrection. The nominal militia force is sufficiently large, — 
11,000,000 men liable for military service in the states ; about 
200,000 enrolled in organizations ; general officers to the num- 
ber of 1,000 ; but the powerful state of New York has actually 
only 14,000 militiamen, Illinois has 7,000, and Massachusetts 
something over 5,000. There are also naval militias in nineteen 
seacoast or lake states, with about 5,000 men and officers. At- 
tempts have been made to give them militia experience on board 
regular cruisers ; but so far they have had little training. 

It is in war that the militia ought to be most useful, but in 
all our wars the defects of the system have been painfully 
manifest. The states have frequently shown themselves ineffi- 
cient in recruiting and organizing troops ; the officers are com- 
missioned by the governors, in many cases because elected by 
the men of the companies ; and when brought into the federal 
service the whole material has had to be worked over, so as 
to get rid of incompetents. The arms and equipment of the 
militia when they enter the service are scanty and imperfect. 
Then, too, the states will not keep their regiments full during 
war, because they prefer to organize new regiments with new 
sets of officers. In the Civil War, hundreds of regiments in 
1864 were reduced to 200 or 300 men each, with an unreason- 
able number of officers; General Sherman, in 1862, com- 
plained, " More than one half the paper army is not in the 
enemy's country." With such forces, it was difficult to enforce 
the plainest principles of discipline. 

In the War of 1898 the same difficulties were encountered : 
the regiments from some states came fully armed, equipped, 
and drilled, ready for immediate service, while others were raw 
levies unaccustomed to discipline and very impatient of it ; 
months had to be spent in instruction camp ; and the men 
were not used to caring for themselves on the march, as regu- 
lars can do. A better system would be for the general govern- 
ment, in time of war, to organize a service of auxiliary regulars, 
enlisted for the war, officered so far as possible by men of mill- 



474 War Powers.' • [§ 205 

tary experience, appointed by federal authority entirely, and 
numbered as United States regiments. The "Dick Law" 
of Jan. 21, 1903, provides for more efficient organization and 
inspection of the militia. 

205. Carrying on "War. 

The existence of war is commonly set forth by act of Con- 
gress. In 1846 President Polk asserted that " war existed by 
the act of Mexico " ; but Congress nevertheless made a formal 
declaration of war, as it did in all the other foreign wars except 
that of 1.798. The importance of the question is simply that, 
after a declaration of war, every subject of the foreign country 
becomes an enemy. In 1861 Congress took the ground that 
there was no war, but simply military force used to execute the 
laws of the Union ; but by proclamations of blockade in April, 
1 86 1, the president practically recognized the existence of war, 
in which each of the parties had the usual belligerent rights. 

In its various wars the United States has had about the fol- 
lowing number of enlistments: Revolution, 230,000; War of 
1812, 145,000; Mexican War, 44,000; Civil War (Northern 
side), nearly 3,000,000 enlistments involving more than 2,000,- 
000 individuals; Civil War (Southern side), 2,000,000 enlist- 
ments involving 1,000,000 individuals ; Spanish War, 300,000. 

In time of war, troops are raised in three different ways. 
(i) By enrolment of regular United States troops. Until 1S98 
Congress was at all times very reluctant to increase the federal 
army; but in 1899 it authorized 100,000 soldiers and 25,000 
sailors, in 1901 it established a permanent peace footing of not 
more than 100,000 soldiers, and in 1903 increased the navy 
to about 29,000 men. 

(2) By calling on the states to furnish troops, under the 
clause authorizing the president to call out the militia "to sup- 
press insurrections, repel invasions, and execute the laws of 
the Union." In 181 2 several New England states refused to 
permit their militia to obey the call, on the ground that there 
was no invasion ; and the administration was unable to help 



§ 205] Carrying on War. 4^5 

itself. The federal government appoints the general officers ; 
but a considerable number of the state generals always receive 
federal commissions, and in all our six wars many civilians 
have received commissions as generals. 

Militia and civilian officers do not always work well. When 
Washington came to Cambridge in 1775 he wrote thence to a 
friend that he had " made a pretty good slam " among the 
militia generals he found there; but in the War of 181 2 the 
two most distinguished soldiers were Jacob Brown of New York 
and Andrew Jackson of Tennessee, neither of whom had expert 
military training. In the Mexican War, however, there were 
plenty of trained officers, and some civilian commanders, among 
them Franklin Pierce of New Hampshire, later president of the 
United States. 

In the Civil War scores of civilians were made generals, 
passing over experienced soldiers who had captains' or majors' 
commissions in the regular army ; and with few exceptions the 
civilian generals proved incompetent to handle large armies. 
The conspicuous example to the contrary was General Nelson 
A. Miles, who worked up to a high position in the army. The 
intrusting of large commands to men of no previous military 
experience caused the loss of scores of thousands of lives and 
of hundreds of millions of treasure, and prolonged the war for 
many months. 

(3) The third method of raising troops is by conscription 
or draft. Every man is bound to render military service 
when the country needs him, and it is legal to select by lot 
such part as may be needed. In 1863 a call was made for 
troops, apportioned among the states according to their popu- 
lation ; in case a state failed to enlist its quota, a public draw- 
ing was held. Many states make up their quota by money 
bounties and other inducements ; in others the drafts were 
held, and the result in New York City was the worst riot ever 
known in the history of the United States. Of the 200,000 
men drafted at that time, large numbers proved to be physically 
incapable of service ; others paid money compensations ; and 



47^ War Powers. [§ 205 

others hired substitutes. In one lot of 15,000 men drafted, 
only 1,300 were actually enlisted. 

War at its worst is the most awful of calamities. Till within 
about two centuries, invading armies habitually pillaged every- 
thing that they could lay their hands on, burned the cities, 
violated the women, tortured prisoners, murdered men, women, 
and children indiscriminately, and sometimes swept off the 
whole population into slavery. The growth of a spirit of 
humanity has brought about an agreement among civilized 
nations that the purpose of war is simply to destroy the 
enemy's military power ; hence the wounded, the prisoners, 
and the non-combatants must be treated with humanity, and 
private property may be seized only if it can be made available 
for immediate military operations. 

This milder spirit is reflected in our Articles of War : pil- 
lage, rape, torture, the wanton burning of houses and cities, the 
use of poisoned bullets, are all forbidden. Nevertheless, what 
is allowed is severe enough : an invading army may sweep the 
country bare of every house or tree that might shelter an 
enemy or give him sustenance ; it may bombard an inhabited 
city ; it may, if necessary, sweep up and concentrate the in- 
habitants of a district in order to prevent their giving aid and 
comfort to the enemy. During the Civil War the lower 
Shenandoah Valley was raided from end to end ; standing 
crops and every mill in the valley were destroyed to prevent 
their making flour for the enemy. Above all, the commander 
of the army may declare martial law, which annuls the pre- 
viously-existing government and makes his will the sole au- 
thority ; he may then arrest any person within his lines and 
condemn him to death by court martial. 

In the whole history of the world, no great war was ever 
carried on with such consideration for non-combatants as the 
Civil War. Rape was almost unknown ; torture of prisoners 
was exceedingly rare, and probably never occurred under the 
authority of any general officer ; there was a good deal of 
looting on both sides, but no scenes of rapine and despair 



§ 2o6] Pensions. 477 

such as have usually occurred at the taking of a city. In the 
Indian wars and in the Philippine War, both carried on at great 
distances with crafty and savage enemies, there were occasional 
acts of cruelty to prisoners and non-combatants, none of which 
were authorized or approved by the head of the army. 

Congress may make rules for captures by land and sea. 
This involves the right to seize the merchant vessels of an 
enemy on the high seas (about 25 captures of that kind were 
made in the Spanish War) ; it also involves the right to search 
neutral vessels, in order to discover whether they are carry- 
ing contraband of war or are otherwise aiding the enemy. 
During the Civil War 1,504 vessels were captured or destroyed 
while trying to enter or leave blockaded ports. 

The present necessities of the American army and navy are 
two. (i) An organization and administrative system which 
shall be as efficient as the German or the Russian. This re- 
quires a trained general staff, with authority over all the 
special branches of military administration. (2) A recogni- 
tion of the fact that the militia is costly and vexatious, and 
weakens the national power of offence and defence. We 
need really efficient and trained state troops for state pur- 
poses ; we need more generous authority to enroll federal regi- 
ments ', we need the selection of none but trained soldiers for 
responsible command of armies ; we need field manoeuvres by 
land and by sea ; we need inflexible maintenance of a humane 
treatment of non-combatants, without forgetting that the object 
of war is to put an end to hostilities. 

206. Military and Naval Pensions. 

The cost of the army and navy of the United States has 
become startling: in 1801 it was ^4,000,000; in 18 14, a war 
year, ^28,000,000; in 1865, ^1,220,000,000; in 1901, a year 
of international peace, it was more than ^200,000,000, or 
about two fifths of the whole national expenditure. To this 
sum should fairly be added the payments for military pensions, 
which down to 1861 were not more than a few millions a year, 



478 War Powers. [§ 206 

but which since 1892 have never fallen below $130,000,000 
a year. The Continental Congress promised that office'rs and 
men should be rewarded for their service, and the officers 
were voted a cash bonus amounting to full pay for five years; 
the common soldiers of that war and of the succeeding In- 
dian wars, the War of 181 2, and the Mexican War were all 
rewarded with grants of land. 

Besides these grants for service, old soldiers who were 
actually disabled and unable to support themselves have from 
the beginning received small money pensions during the re- 
mainder of their lives. Of course the Revolutionary soldiers 
are all long since dead, and in 1901 there was only one sur- 
vivor of the War of 1812 ; but four widows of Revolutionary 
soldiers still draw pensions. 

When the Civil War broke out, a specific promise was made 
by Congress that men disabled by disease or wounds should 
be supported, and the localities in many cases pledged them- 
selves that the- families of men who fell should be cared for. 
These promises were fulfilled: an act of 1862 granted pen- 
sions of from $8 to $^0 per month to men disabled in the 
service, and to their widows after their death. The rates of 
pensions were a little increased from time to time, and special 
allowances were granted to men who had severe disabilities. 
In 1879 an act was passed authorizing any person entitled to a 
pension to claim arrears from the date of his discharge ; this 
offered a premium of about $1,000 for new claimants, and the 
payments immediately jumped up from $27,000,000 in 1878 
to $57,000,000 in 1880. 

So far pensions had been granted only to soldiers disabled 
in the service and their relatives. In 1886 a bill passed both 
houses, but was vetoed by President Cleveland, granting 
pensions of $6 to $12 per month to all persons who had 
served in the army for ninety days and were unable for any 
reason to earn a support by manual labor. This was the first 
time that the principle was acknowledged by .Congress that 
every person who had served in the Civil War was entitled to 



§ 2o6] Pensions. 479 

aid from the government if he needed it. Widows of old 
soldiers are entitled to pensions, no matter what the cause of 
death, provided they are without means of support other than 
their daily toil, and (since 1900) have an annual income less 
than ^250. This bill became an act in 1890, cost ^500,000,000 
within ten years, and more than 550,000 persons are now 
drawing pensions under it. In 1901 there were on the rolls 
736,000 disabled persons, and 234,000 widows of soldiers. 

About 7,000 special pension acts have been passed since 
1867, each of them granting a pension to some individual 
who could not bring the necessary proof before the Pension 
Bureau. Some of these cases were meritorious, the evidence 
having been destroyed ; others were undeserving, — as, for 
instance, a bill granting a pension to the widow of a former 
soldier who was accidentally shot by a neighbor in the effort 
to shoot an owl ; and cases have occurred of the grant of 
arrears of pension to the amount of ^4,000 to the " widow " 
of a soldier who had married again after her husband's death. 
By acts passed from forty to sixty years after the end of the 
War of 181 2 and of the Mexican War, all survivors of those 
wars were granted pensions ; and it is probable that a few years 
hence efforts will be made to do the same thing with the sur- 
vivors of the Civil War, eight tenths of whom appear to be 
already on the roll. 

The difficulties with the whole pension system are (i) That 
enormous sums are involved: since 1866 ^2,700,000,000 
has been paid in military pensions, a sum nearly equal to 
the original cost of the war. (2) Pensions are freely granted 
to men who served but a few weeks, who never saw a battle, 
and who never suffered from wounds or disease. (3) Those 
who lived through the Civil War are aware that the soldiers 
were not the only persons who made sacrifices for the sal- 
vation of the government. The hardships and suffering 
were shared by the whole nation : wives, sisters, children, 
sweethearts, suffered privations and anxieties ; one brother 
often supported the family so that another brother could go 
to the war. 



480 War Powers. [§ 206 

It is right that the old soldier should be preserved from 
want, and that the wife of his youth should be cared for if 
he is taken away ; it is not right that men able to care for 
themselves should be receiving the bounty of government. 
Some of the pension cases border on the ludicrous : as, for 
instance, that of a man who was receiving ^100 a month for 
total disabihty, and also a salary of $5,000 a year as senator 
of the United States ; and of a man who received a pension for 
total deafness, and was employed in one of the departments 
in Washington to attend the telephone. 

In addition to money pensions, the old soldiers have many 
privileges. Many of them received heavy cash bounties when 
they went into the service ; the United States has provided 
a number of Soldiers' Homes throughout the country, to 
which any man who has served is admitted if he so desires ; 
some of the states and localities regularly appropriate money 
for the support of soldiers and their families ; and soldiers 
have a preference over other persons in appointments to the 
civil service. 



Part IX. 
Commercial Functions. 



CHAPTER XXVI. 

ORGANIZATION OF COMMERCE. 

207. References. 

• Bibliography : D. R. Dewey, Financial Hist, of the U. S. {Am. 
Oitizen Series, 1902), pp. ix-xxvii ; C. D. Wright, Practical Sociology 
'Am. Citizen Series, 1900), §§ 123,. 134, 144, 150; A. B. Hart, Manual 
(1908), §§ 33, 34, 119, 120, 144, 161, 296; R. C. Ringwalt, Briefs on 
Public Questions (1906), Nos. 15-18; Charming and Hart, Guide (1896), 
§§ I53> 174) 195; Brookings and Ringwalt, Briefs for Debate (1896), 
Nos. 34-36, 51, 57-60. 

Commerce in General: G. S. Boutwell, Constitution (1895), ^^s. ix, 
xi-xiv, xxi, xxvi, xxviii ; T. M. Cooley, Constitutional Law (3d ed., 1898), ch. 
iv, §§ 2, 4-10; J. I. C. Hare, Constitutional Law (1889), I, Lects. xxi- 
xxiii ; W. D. Lewis, Federal Power over Commerce (1892); The Ameri- 
can Natioji, chapters in the successive volumes in Commerce problems ; 
R. L. Ashley, American Federal State (1902), ch. xxvii; Industrial 
Commission, Reports (1902), XIX, 485-694. 

Commercial Organization: E. McClain, Constitutional Law {iqo$), 
§§ 9S~98; A. Shaw, Political Problems (1907), ch. vii ; H. R. Seager, 
Trade Uniofis and Trusts {Pol. Sci. Quar., XXII, 385, Sept., 1907); 
Industrial Commission, Reports (1900-1902), I; XIX, §§ 595-720; E. 
Freund, Police Power (1904), chs. xv, xvi; D. R. Dewey, National 
Problems {Am. Nation, XXIV, 1907), ch. xii; J. Bryce, Am. Common- 
wealth (ed. 1901), II, ch. civ; T. B. Veblen, Business Enterprise (1904); 
H. C. Emery, Speculatio7t (1896); R. T. Ely, Monopolies and Trusts 
(1900); J. B. Clark, Control of Trusts (1901); C. F. Adams, in N. S. 
Shaler, United States (2 vols., 1894), II, ch. iv; J. W. Jenks, Trust 
Problem (1900); H. D. Lloyd, Wealth against Commonwealth (1894); 
W. M. Collier, The Trusts (1900) ; E. R. A. Seligman, Ecotwmics 
(3d ed., 1907), §§ 225-325. 

31 481 



482 Organization of Commerce. [§ 208 

Banks and Banking: D. R. Dewey, Financial Hist. (1902), p. xiii, 
§§ 43, 58, 67-72, 85-89, 103, 138-140, 162-165, 174, 178; J. J. Knox, 
Hist, of Banking (1900) ; Comptroller of the Currency, Anmial Report; 
C. A. Conant, Modern Bajiks of Issue (1896), chs. xiii-xv; W. G. Sum- 
ner, Hist, of Banking (1896 J ; E. R. A. Seligman, Economics (3d ed., 
1907), §§ 208-221. 

Coinage and Currency : J. J. Knox, U. S. Notes (1884) ; C. J. 
Bullock, Monetary Hist. (1900), 79-121 ; H. White, Money and Banking 
(1896) ; D. K. Watson, Hist, of American Coinage (1899) ; D. R. Dewey, 
Financial Hist. (1902), p. xvii, §§ 44, 90, 153-161, 1S5-194, 198; R. L. 
Ashleyj Am. Federal State (1902), ch. xxvi; E. R. A. Seligman, Eco- 
nomics (3d ed., 1907), §§ 186-207, E. E. Sparks, National Development 
{Am. Nation, XXIII, 1907), ch. ix ; D. R. Dewey, N'ational Problems 
{Am. Nation, XXIV, 1907), chs. v, xiv, xvi, xx ; Secretary of the Treas- 
ury, Annual Report ; Register of the Treasury, Annual Report. 

Labor: C T). V^x'ight, Practical Sociology {i<^oo),Y>^rtY ; C.D.Wright, 
Industrial Evolution (1895) ; C. B. Spahr, America's Working People 
(1900); W. F. Willoughby, State Activities itt Relation to Labor (1901); 
H. Miinsterberg, Americatts (1905), ch. xlii ; Industrial Commission, 
Reports (1900-1902), V, VII, VIII, X, XII-XIV, XVI-XVIII, XIX, 
pp. 723-950; E. Freund, Police Power (1904), chs. xiii, xiv; E. E. 
Sparks, National Develop7nent {Am. Nation, XXIII, 1907), ch. v; D. R. 
Dewey, National Proble?ns (Am. Nation, XXIV, 1907), ch. iii ; E. R. A. 
Seligman, Economics (3d ed., 1907), §§ 172-185. See also references to 
chs. i, ii above. 

208. The Business Man and the Firm. 

Large as is the movement of foreign commerce, it is only a 
fraction of the business which begins and ends within the 
United States. The actual production in one year in the 
United States is now about ^18,000,000,000; and parts of 
this enormous output are moved several times, before reaching 
the consumer. The annual savings of the American people, 
after paying more than ^1,000,000,000 for the expenses of 
their governments, is perhaps $1,000,000,000, ox $12 per head 
of the population. Of the body of elaborate law and practice 
on the rights and responsibilities of traders, only the relations of 
the various kinds of government to the organization of business 
can be touched upon here. 

In colonial times, most business was done by merchants 
trading on their own credit : John Hancock and Robert Morris 
are examples of wealthy merchant princes, who bought and 



§ 209] Partnerships. 483 

sold, imported and exported, owned vessels, and did a for- 
warding and banking business for themselves and their friends. 
In 1900 about 1,100,000 persons were doing business as mer- 
chants and manufacturers, each for himself, each liable in his 
whole property for any debt. 

A common variation from this type is the partnership, the 
conditions and relations of which are adjusted by state laws, 
and the general principle of which is that every active partner 
has a right to make contracts in the name of the concern 
and to sign for the firm, and is liable for the whole amount of 
the firm's debts. Partnerships have the individual's privilege 
of holding private the details of their business, although for 
their own protection and as a basis for collecting debts they 
keep books of account. Partnerships are easily perpetuated 
from generation to generation : the firm of Brown and Ives of 
Providence, for instance, has continued in profitable business 
for more than a century. 

The system is favorable to many kinds of business which 
require special functions : one partner may be the financier, 
another the manager of the factory ; another may superintend 
the extraction of raw material. All active and energetic firms 
are able to borrow money from banks created to provide such 
credit facilities. Thus, business houses control capital not 
their own ; and the success of a business means not only an 
income and a gain for the partners, but an avenue for the 
investment of others' capital. The great disadvantage of a 
partnership is that every partner has the power to ruin both 
himself and the other members of the firm by injudicious 
agreements. 

209. Corporations and Trusts. 

Notwithstanding that the colonies were founded on charters 
granted to trading companies, commercial corporations were 
little known in America till after the Revolution. In 1781 
was chartered the first bank, — the North America, in Phila- 
delphia, — and about the same time began turnpike, canal, 



484 Organization of Commerce. [§ 209 

insurance, and manufacturing companies. From that time 
the organization of business by corporations has gone forward 
with leaps and bounds. 

Nothing is said in the federal constitution about charter- 
ing corporations, and a clause granting such a right to Con- 
gress was voted down by the Convention. Nevertheless, the 
Northwest Ordinance of 1787 was a charter for a public cor- 
poration; in 1 791 the federal government chartered the 
Bank of the United States ; and as soon as it had a seat 
of government it began to charter companies in the District 
of Columbia. By the practice of a century, backed up by 
numerous decisions of the Supreme Court, Congress has a 
right to charter corporations for any national purposes, with 
power to carry on operations throughout the Union. Most of 
the charters, however, are granted by the states. A special 
statute used to be necessary in each case ; but at present 
many states have general laws of incorporation, under which, 
after fulfilling certain formalities, any body of persons has a 
right to be incorporated. 

(i) The fundamental principle of incorporation is that the 
organization thus created is in most respects like an individ- 
ual : it may hold property, receive bequests, especially for 
educational and charitable purposes ; it may sue and be sued ; 
it may contract debts and become security for other people's 
debts. (2) A second characteristic is the limited liability of 
the stockholder : in case of failure of the corporation, he loses 
only the amount which he has paid for stock, and a limited 
amount beyond; for instance, the holder of ten ;^ioo shares 
may lose his $1,000 and be liable for another $1,000. This 
makes stock investments attractive to wealthy men, who would 
not risk their whole fortunes on the success of each of a dozen 
different partnerships, but who could not be held responsible 
for the failure of any of a dozen companies in which they 
were interested. (3) The corporation has the further advan- 
tage that its stock can be subdivided into small shares, thus 
furnishing investment for the poor man ; and, since the shares 



§ 209] Corporations and Trusts. 485 

are readily transferable from hand to hand, stock is a much 
easier investment to manage and to dispose of than a partner- 
ship interest. 

Corporations, like individuals, have distinct obligations 
under national and state statutes, (i) In some states con- 
siderable fees are payable on the creation of a corporation ; in 
others there is a special corporation tax. (2) An important 
restriction is that corporations may be compelled to publish 
accounts for the protection of stockholders and for the infor- 
mation of investors : the United States Interstate Commerce 
Commission requires the submission, on uniform blanks, of 
accounts relating to interstate commerce. By an Act of 
February 14, 1903, the United States may call for the accounts 
of any corporation engaged in interstate business. (3) In 
many states corporations, such as gas and water companies, 
railroads, traction lines, and other public-service corporations, 
are subject to the inspection, and even to the control, of 
administrative commissions. (4) Still another hold of the 
state is through the power of the courts to take away the 
charter of a corporation if it can be shown to have violated 
the conditions upon which it was created. 

The economic development since the Civil War has called 
into being literally thousands of corporations, and about 1870 
began a process of amalgamation of those in the same line of 
business. Charters were often granted, especially to railroads, 
permitting one corporation to absorb another. This process 
led to many complications, because the ordinary rule is that 
a majority of shares decides questions in corporation meetings : 
for instance, in a corporation having 100,000 shares, the holder 
of 51,000 shares may transfer or impair the property against 
the will of the holders of the other 49,000. 

To facilitate the combination of corporations, the method 
of trusts was invented, by which certain persons were desig- 
nated as trustees to hold the stock of several corporations and 
to vote it all for one purpose. This was practical amalga- 
mation without the actual process. At first these trusts were 



486 Organization of Commerce. [§ 209 

merely private associations of individuals, who were not liable 
in their own property for the debts of the trust or of any of 
its corporations, and who therefore were enjoying the privi- 
leges of incorporation without its limitations and safeguards. 
At present nearly all such organizations have taken out sepa- 
rate corporate charters : corporation A may own all or a 
majority of the stock of corporation B, which may own the 
whole stock of corporations C and D, which may be made up 
of amalgamations of corporations E, F, G, and H. Such trusts 
are exceedingly hard to follow and control, especially as cor- 
poration A may be chartered by New York, corporations B 
and C by New Jersey and West Virginia, and the other cor- 
porations by still other states or by foreign countries. Of late 
years the name " trusts " has also been applied to powerful 
Corporations which comply with the regular corporation laws 
but are formed to control the whole of some great line of 
business. Such are the Meat Trust, the Federal Steel Com- 
pany, the Standard Oil Company, and the Cotton-seed Oil 
Trust. 

The latest form of aggregation of capital is the syndicate, or 
combination. It has become a business, almost a profession, 
to promote a consolidation of large enterprises. For instance, 
all the sugar refineries of the country are owned by one body 
of capitalists, who run those that are most profitably situated.. 
The great banking houses, especially in New York, are the 
agencies for great aggregations of capital, and their members 
are large owners. The United States Steel Company was 
capitalized at $1,100,000,000, and was financiered by the 
house of J. P. Morgan & Co. Through these agencies, under- 
standings have been reached between the heavy capitalists, 
especially the owners of railroads : for instance, the great east 
and west trunk lines are in the hands of people who undertake 
to keep rates up to a paying figure, and who avoid competi- 
tion with each other. 



§2io] Banks and Banking. 487 

210. Banks and Banking. 

Among the earliest joint-stock limited liability corporations 
are the banks, which in many ways are still the most effective 
agencies of modern business, and in their important functions 
are closely regulated by either federal or state law. 

(i) They receive deposits in any amount, and thus bring 
into use the small savings and balances which would otherwise 
be hidden away. (2) They make loans, partly out of their 
capital, partly out of their deposits, partly out of their note 
issues. 

(3) Through the system of payment by checks, the banks 
make it possible to carry on an enormous business with a small 
amount of currency. In all the cities there are clearing-houses, 
in which checks are exchanged and differences between the 
daily debt and credit adjusted. In the New York clearing- 
house, the annual clearings for 1902 were ^75,000,000,000, 
of which less than 5 per cent had to be handled in cash. 
(4) The banks through their own checks make easy the 
transfer of money throughout the country at small expense. 

(5) Many banks issue demand notes in small denomina- 
tions : the so-called "colonial banks" were really loans of 
public money expressed in paper notes. The first actual 
banks of issue were founded during the Confederation ; event- 
ually the states authorized some thousands of banking institu- 
tions, the security of which depended on the care with which 
the charters were drawn up, — that is, on the temper of the 
state legislatures. During the period from 18 10 to i860 
hundreds of "wildcat" banks freely issued notes: in 1861 it 
was estimated that there were about 5,000 kinds of bank 
notes afloat, many of them counterfeit or raised, others 
authentic, but without value because the bank had no prop- 
erty. The confusion was vexatious, and would now be intoler- 
able : every time a payment was made the questions arose, 
" Are those bills genuine ? are they on sound banks ? are they 
redeemed in specie at the Eastern centres? " 



488 Organization of Commerce. [§210 

In 1 791 the federal government chartered the first of three 
successive systems of national banks. The question of con- 
stitutionality was at once raised, and Hamilton argued that 
Congress had a right to charter a bank ; not through any 
power to charter corporations in general, but because, in 
carrying out the powers committed to it, Congress had the 
implied power of using any suitable instrumentality not dis- 
tinctly prohibited by the constitution. What he really had in 
mind was that the United States Bank would be a means of 
convincing the country that the federal government ought to 
continue. During its lifetime of twenty years the bank was 
prosperous and helpful. 

Allowed to expire in 181 1, the United States Bank was re- 
vived in 1 81 6, with what was then the enormous capital of 
;^35,ooo,ooo. In 1829 it incurred the hostility of President 
Jackson, who saw with clearness that it could not permanently 
keep out of politics ; he refused to sign a recharter bill, and 
the bank expired in 1836. Once more the state banks had 
a clear field. About half the states created good sound sys- 
tems of banking ; others set up official state banks, such as 
those of Kentucky, Ohio, and Indiana, some of which were 
successful ; and others failed and brought ruin with their 
failure. In 18 14, 1837, 1857, and 1861 all the state banks 
suspended specie payments. 

During the Civil War, Mr. Chase, secretary of the treasury, 
devised a system of national banks, which was authorized in 
1862. In 1865 Congress laid a tax of 10 per cent per annum 
on all state bank notes ; and thus the banks of issue were 
compelled to take government charters or to give up their 
circulation. Of course private firms and state corporations 
may, and many do, receive deposits, lend money, and make 
exchanges ; but no bank notes can profitably be issued ex- 
cept by the United States national banks. 

These national banks have increased enormously in num- 
ber and power. In 1902 there were over 4,300 of them, 
with a total capital and surplus of over ^970,000,000, and 



§2ii] Transfer of Title. 489 

a note circulation of $360,000,000. As government insti- 
tutions, the banks are subject to the supervision of bank 
examiners appointed by the federal government ; and their 
notes are absolutely protected by deposits of United States 
bonds kept in the federal treasury. The banks are practi- 
cally associated in districts ; the small country banks keep 
deposits in the larger cities, while the city banks keep de- 
posits in New York. In practice this is something very 
like the English, French, and German systems of parent 
banks with branches. 

Two other sorts of banks must be mentioned. One is the 
savings bank, which receives deposits on interest, and safely 
invests in real estate and other long-time securities because in 
case of pressure it is allowed to require notice before paying 
out deposits. In 1901 the savings banks of New York State 
alone had over 2,000,000 depositors, and ;^ 1,000,000,000 on 
deposit ; and in the whole country there were about 6,500,000 
depositors with deposits of $2,600,000,000. 

The other kind of bank is the trust company, which has 
developed within the last twenty years. Such companies 
undertake the administration of large transactions, such as the 
refunding of a corporate loan or the amalgamation of corpora- 
tions ; they act as trustees and investors for estates ; and most 
of them receive deposits, subject to check, although none of 
them have any privileges of note issue. 

211. Transfer of Title to Property. 

One important element of modern commerce is celerity and 
security (chiefly under state law) in giving legal control of 
property that has been sold, and in creating titles which may 
easily pass from hand to hand. For instance, the ownership 
of a railroad is represented by shares, which are transferable 
upon the books of the company ; and, if it is a sound, divi- 
dend-paying company, the owners can find ready purchasers, 
or can borrow on the security of their shares. 

Title to the great staples of commerce is transferred in a 



49° Organization of Commerce. [§211 

similar way. The farmer expects to get cash for his cotton or 
corn or wheat when he deUvers it to the elevator; but the 
elevator company may ship the wheat on its way to Europe, 
and issue an inspection certificate, upon which money may be 
instantly raised, up to the full market value in Europe less the 
freight : the certificate is the title ; and, though the grain may 
be in an inaccessible car somewhere on a side-track, the 
ownership is transferred whenever the certificate changes 
hands. 

One means of simplifying transfers, both of stocks and 
bonds and of staple articles, is by the exchanges which exist in 
all the large cities. In New York City, for instance, there is 
a stock exchange, in which for a few hours every business day 
transactions are made by "brokers," who take orders to do 
business for other people upon commission. There is also a 
separate cotton exchange, a copper exchange, a petroleum 
exchange, and a produce exchange, in which wheat, corn, 
oats, rye, and other such staples are bought and sold. The 
actual thing transferred is either a certificate to visible property 
or an agreement to transfer property. 

All these exchanges give opportunity for buying and selling 
for future delivery : a manufacturer often has to contract 
beforehand for a supply of his raw material ; and exporters 
buy in advance, so as to fill their steamers. In practice most 
future sales are speculations, not based upon anything tangible. 
A agrees to deliver to B a million bushels of wheat on January 
I, at a price which A thinks is higher than wheat will bring on 
that date; he and his friends then as "bears" try to force 
down the price by offering low prices for small lots, and by 
trying to persuade people that the crop will be heavy ; B and 
his friends as " bulls " try to push the price up, so as to make 
a profit on the purchase when delivered. All the staples, and 
many stocks and bonds, are subject to these speculative opera- 
tions, which are very close to gambling and in Germany are 
strictly limited by law and heavily taxed. In most cases, 
when the transaction comes to be settled, no property is 



§ 2ii] Transfer of Title. 491 

delivered at all : the party that gets the worst of it simply 
pays the difference between the agreed price and the then 
market price. 

To go into these speculations, it is only necessary to deposit 
a margin, — that is, money enough to cover the probable 
fluctuation of prices. With ^1,000 a man may purchase the 
right to buy and sell ^20,000 worth of stock. If the move- 
ment goes against him to the extent of 5 per cent, or " five 
points," his broker will " sell him out," unless more margin is 
deposited ; if the object of speculation rises sharply, the 
speculator may sell out and get the profit, not on his ^1,000, 
but on the nominal ^20,000. This is gambling for high 
stakes; and the " lamb," or outsider, is almost certain to lose 
in the long run, because he pays the broker's commission, 
which is a steady drain, and because the great manipulators of 
stocks and products have better opportunities than any one 
outside of knowing whether prices are likely to fall or to rise, 
and they do not intend to lose their money to the greenhorn. 

These speculative transactions seldom much affect the actual 
cash value of property, although railroad or corporation stock 
is sometimes deliberately depressed in price by unfavorable 
reports from large owners, who wish to frighten holders out of 
their stock so that they themselves may pick it up at a sacri- 
fice ; or a great staple or stock is " cornered " by people who 
agree to purchase at a moderate figure, and then lock up the 
available supply and make delivery impossible. 

In investments, a distinction is always made between stocks 
and bonds, and also between various kinds of stocks and bonds. 
Usually a corporation has a simple capital stock ; but it is not 
uncommon for it to have also a preferred stock, which gets 
the first profits. The best bonded security is usually a first 
mortgage bond on the real estate of a corporation, especially 
of a railroad, which must pay interest on the mortgage or lose 
control of its right of way, A second mortgage is often put 
on, and such a "junior security" usually draws a higher rate of 
interest, because not so well protected. 



492 Organization of Commerce. [§ 211 

A special form of property is placed under the exclusive 
jurisdiction of Congress, by the clause of the constitution 
giving to Congress authority " to promote the progress of 
science and useful arts by securing for limited times to authors 
and inventors the exclusive rights to their respective writings 
and discoveries." Early statutes embody three principles 
which are the basis of the present great patent system : 
(i) the fee is small (now ^35) ; (2) all patents are re- 
corded in the books of the Patent Office for comparison and 
for transfer of title; (3) all patents cease after a brief term 
of years (now 14). The patent gives the exclusive right to 
manufacture, use, or sell the invention described ; and the 
result is that, in the modern intense industrial competition, 
thousands of patents are obtained in order that they may not 
be used : for instance, when Hiram Maxim invented his maga- 
zine gun, he took out about 200 patents on every conceivable 
variation, so that nobody else could come in with something 
near his machine. The telegraph companies and like cor- 
porations habitually buy up all the promising patents offered 
to them, using those which seem likely to save them money, 
and pigeon-holing the rest. 

The number of patents granted since the records began in 
1837 is over 700,000, of which 28,000 were in the year 1900. 
In the same year, however, 21,000 patents expired. Thomas 
A. Edison stands on the books of the Patent Office as the 
inventor of 742 allowed patents, and many other inventors 
have received more than 100 patents each. Two of the 
earliest important patents were to Eli Whitney for his cotton- 
gin in 1793, and Robert Fulton for his steamboat in 1809. 
The inventive genius of America has been stimulated by some 
cases of enormous profits : thus, the principal sewing-machine 
patents brought in over ^60,000,000 profits to the holders. 
The technical skill necessary to distinguish between a new and 
a previously-patented idea is such that patent litigation is 
frequent and is hotly contested. 

The exclusive right to a copyright on an intellectual product 



§212] Doctrine of Contracts. 493 

is subject to the same principles as a patent, — -a small fee 
(50 cents), record on the government books; and a term of 
years (now 28, with the privilege of renewal for 14 more). 
Copyrights include books, maps, dramatic or musical composi- 
tions, drawings or other works of art, engravings, photographs, 
and so on. These privileges were for many years confined to 
citizens of the United States; but in 1891 an act was passed 
allowing foreigners to secure copyrights on literary productions 
published from type set within the United States. 

For several years Congress also gave exclusive privileges of 
trade-marks, with the purpose of preventing the imitation of 
standard brands of goods; but a test case was made up in 
1 88 1, and it was held that trade-marks for commerce within 
a state were nowhere authorized by the constitution. Con- 
gress subsequently passed an act providing for the registry of 
trade-marks, to be used in commerce with foreign nations, or 
with the Indian tribes ; and about 1,600 such trade-marks are 
recorded every year. 

212. Doctrine of Contracts. 

All modern business rests upon the principle that sane 
people who make agreements with each other, not influenced 
by fraud, must keep those promises even to their own hurt, 
and are liable in civil suit for the fulfilment of the agreement, 
or for damages. This great doctrine of contract, firmly 
imbedded in the common law, is absolutely essential to civili- 
zation and to the maintenance of private property. Govern- 
ments should recognize this fact, both by keeping their own 
promises and by holding private contracts to fulfilment. 

Neither of these two principles was very carefully observed 
in colonial times. The colonies issued quantities of paper 
notes, a part of which they never paid ; and they thus made it 
possible for the debtor who had borrowed money or bought 
goods on a specie basis to settle in a depreciated currency. 
These evils were greatly aggravated in the Revolution. The 
federal government issued ^240,000,000 of paper money, the 



494 Organization of Commerce. [§ 212 

great part of which was never redeemed. The states also 
issued Revolutionary paper notes, which were all substantially 
repudiated ; and in the Confederation epoch about half of 
them raised new crops of the same kind. They also passed a 
series of statutes known as the " stay and tender laws," under 
which creditors were compelled either to postpone suits for the 
collection of debts, or to accept cattle, produce, or even land 
at an appraised value. This affected creditors from other 
states, and was the cause of loss and confusion. Hence, by 
the federal constitution Congress was given power to regulate 
commerce between the several states ; and the states were 
forbidden to emit bills of credit, to make anything but gold 
and silver coin a tender in payment of debts, or to pass any 
law impairing the obligation of contracts. 

In practice, the restriction on the states was speedily en- 
larged to cover cases which probably were not in the minds of 
the framers of the constitution. In the case of the Yazoo 
lands {^Fletcher v. Peck, 1810), the Supreme Court held that 
a Georgia statute annulling a grant of lands was void because 
the grant was a contract creating vested rights, which the state 
was obliged to recognize. In 18 19 this doctrine was widely 
extended by the decision in Dartmouth College v. Woodward. 
The king in 1769 had granted a charter to Dartmouth Col- 
lege', and in 18 16 the legislature of New Hampshire passed 
an act to alter the charter ; the Supreme Court held that a 
charter to a private institution, once granted, was a contract 
irrevocable without the consent of the corporation thus created. 
In the same year, in the case of Sturgis v. Crowninshield, it 
was held that a state bankruptcy act applying to debts incurred 
before the date of the act was also an impairment of contract. 
After about 1830 the Supreme Court took milder ground as to 
contracts ; and most of the states- have settled the question 
of charters by inserting clauses in their constitutions, or in 
the text of the charters, to the effect that charters are alterable 
or repealable at the discretion of the legislatures. The Four- 
teenth Amendment in 1868 added another restriction,— 



§ 213] Weights and Measures. 495 

namely, that no state should "deprive any person of life, 
liberty, or property, without due process of law," a clause 
which reinforces the earlier inhibition on impairment of 
contracts. 

No clause in the federal constitution prohibits Congress from 
impairing the obligation of contracts if such an impairment 
comes as an incident of specific powers. Under this construc- 
tion, in 1862 Congress made United States treasury notes 
legal tenders, and eventually issued ^450,000,000 of such notes, 
an issue which the Supreme Court in 1884 held to be con- 
stitutional even in time of peace. The Irish land legislation 
during the last twenty-five years in the British Parliament has 
practically been a steady impairment of the rights of contract 
between landlord and tenant. Such legislation could hardly 
be secured in any state in the Union. 

The one direction in which the nation and the state steadily 
interfere with contracts is in declaring that certain kinds shall 
not be made at all. In Rhode Island, for a time, a traction 
company could not make or enforce a contract with men to 
work more than ten hours a day ; and in no state can a man 
legally contract to perform a criminal act, or to serve another as 
a bondman. At present, legislation is moving rapidly toward 
a regulation of the relations between employer and laborer, by 
forbidding men to make agreements as to hours or dangerous 
employments which are thought to be prejudicial to the inter- 
ests of the whole working class. 

How a contract may be made, what is legal evidence of it, 
how far specific performance may be compelled, how damages 
for breach of contract are to be assessed, — these are legal 
questions of great intricacy, the subject of very numerous 
laws, national and state, and of thousands of court decisions. 

213. Weights and Measures. 

In most cases, contracts are expressed in quantities, — so 
many dollars for so many acres of land, tons of iron, barrels of 
molasses, or yards of cloth. One of the great services of the 



49^ Organization of Commerce. [§ 214 

French Revolution was to simplify the whole system of weights 
and measures, by the introduction of the metric system. The 
unit of length, supposed to be one four-millionth of the cir- 
cumference of the earth, is the metre ; and area, mass, and 
weight are directly related to it ; hence every child who can 
cipher knows all his tables of measure automatically. This 
great reform has extended everywhere throughout the Western 
world, except to England and the United States, which still 
adhere to the clumsy and antiquated measures of a century 
ago : we have two kinds of pound, pound troy and pound 
avoirdupois ; two tons, the long ton of 2,240 pounds and the 
short ton of 2,000 pounds ; our square measure of land 
involves clumsy fractions ; only our coinage is decimal, to the 
great convenience of the country. The constitution gave to 
Congress exclusive control over weights and measures, and it 
simply legalized the old-fashioned English standards. 

The local governments usually regulate scales and measures, 
and often have inspectors who search for false or inaccurate 
weights and measures. In 182 1 John Quincy Adams was 
very anxious to unify the standards, and two years later Con- 
gress ordered a set of standard weights to be sent to each state. 
In 1866 Congress authorized the use of the metric system; 
and it is freely employed by scientific men for their work, 
because it is used by scientific men abroad. It would be a 
public convenience to pass a national statute for the gradual 
substitution of this system, by setting a date after which the 
courts shall not recognize contracts expressed in the old 
standards. 

214. Coinage and Currency. 

Since most contracts, and all obligations of the tax-payer 
and of the local, state, and national governments are expressed 
in money, it becomes very important to know what is the 
authority of government over coinage and currency. The 
only legal English coinage at the time of colonization was 
specie, and the unit was the pound sterling, divided into 



§ 214] Coinage and Currency. 497 

twenty shillings, and each shilling into twelve pence. The 
colonies had a large trade with the Spanish colonies, from 
which foreign silver and gold coins flowed in, especially the 
piece of eight or dollar; but in many places there was so 
little money that people dealt with each other by barter. 
Paper notes, first issued by Massachusetts in 1690, were so 
frequent in the colonies that in 175 1 the British govern- 
ment prohibited further issue, yet could not stamp them 
out. 

During the Revolution, specie nearly disappeared; but 
favorable trade conditions after the war brought in a jumble 
of foreign coins, good, bad, and indifferent. The Confedera- 
tion had power to establish a national coinage, and agreed on 
a decimal system founded on the dollar ; but it had no specie 
with which to strike coins other than a few tons of cents. 
By the constitution. Congress received power to '' coin money, 
regulate the value thereof, and of foreign coin," and the states 
were expressly forbidden to " coin money " or " emit bills of 
credit." 

It seems to have been supposed that raider this clause the 
states were prohibited from striking money, and both states 
and nation from issuing paper money as legal tender ; so that 
the only legal currency would be federal coins, or foreign coins 
allowed to circulate at valuations fixed by Congress. In 1792 
was passed the first coinage act, providing for the striking of 
both gold and silver coins at a ratio of 15 to i : eagles, half 
eagles, and quarter eagles were of gold ; dollars, half dollars, 
quarter dollars, dimes, and half dimes, of silver ; cents and 
half cents, of copper. At that time, however, there was no 
considerable supply of either metal produced in the United 
States, and the notes of the state banks and the United States 
Bank were the common currency, although not legal tender. 
In 1834 the ratio between gold and silver was changed to 16 
to I. The discovery of gold in California in 1848 greatly in- 
creased the gold coinage ; but when specie payments were sus 
pended in 1861 gold and silver at once went out of circulation 



49^ Organization of Commerce. [§ 214 

To fill the gap, and to provide an easy means of borrowing 
money, the government issued treasury notes, not legal tender, 
as it had done repeatedly in times of financial stress. In 1862 
legal tender notes were authorized ; and, as the treasury was 
hard beset during the whole war, more and more notes were 
issued, up to about $450,000,000, with a corresponding depre- 
ciation as measured in specie. The lowest point reached was 
in 1864, when greenbacks for a few weeks were worth about 
40 per cent of their face. It was not until 1879 that the gov- 
ernment could accumulate $100,000,000 of gold as a reserve 
for $350,000,000 of greenbacks then outstanding, and resume 
specie payments. 

Meantime a new currency question arose. Silver had in 
1873 gone almost out of use, and Congress, practically with- 
out opposition, voted to discontinue the coinage of the stand- 
ard silver dollar. About this time new silver mines were 
opened up, and Germany gave up its silver coinage and threw 
its surplus stock on the market ; so that the market price of 
silver in the English market fell rapidly, as measured in gold 
coin. The result was that the mine owners felt that a use of 
silver which had gone on for nearly a hundred years had been 
unreasonably withdrawn ; and a considerable part of the peo- 
ple, especially in the West, felt that the conditions of com- 
merce and the influence of the government were such as to 
compel those who were in debt to pay in gold, which many 
eminent authorities believed was constantly rising in propor- 
tion to the staple products of the country. 

In 1878, therefore, Congress enacted that the secretary of 
the treasury every month buy silver bullion to the amount 
of not less than $2,000,000 measured in gold, and coin it into 
silver dollars. In twelve years 368,000,000 silver dollars were 
coined ; but the price of silver began to drop : it was impossi- 
ble to keep this enormous weight of silver in circulation, and 
the government adopted the policy of issuing certificates in 
dollars and multiples of dollars, each representing actual 
coins lying in the vaults of the treasury. 



§2 15] Commerce and Occupation. 499 

In 1890 the so-called "Sherman Act" was passed, by 
which the secretary of the treasury was compelled to buy 
4,500,000 ounces of silver each month, and to use it as a 
basis for legal tender notes payable in coin. This act lasted 
only three years : in 1893 a dangerous financial panic came 
on, and silver coinage was wholly suspended by Congress. 
The gold reserve to support the greenbacks, which had for 
fourteen years never fallen below ^100,000,000, was in dan- 
ger of disappearing; the revenue of the country fell off; 
and over ^260,000,000 of government bonds were issued to 
meet the deficiency. In 1896, and again in 1900, the ques- 
tion of the restoration of silver to coinage on the old basis 
was the burning issue in the presidential campaign. Good 
crops, however, favorable trade balances, and an enormous 
and unexpected production of gold brought matters to a 
point where, on March 14, 1900, Congress authorized the 
secretary of the treasury to redeem greenbacks, silver treasury 
notes, and silver notes of 1890 in gold coin, and to sell bonds 
to keep up a sufficient reserve. 

This action quieted the financial interests, which feared that 
the United States was to be thrown upon a standard different 
from that of foreign countries and subject to violent fluctua- 
tion. Losing the support of federal purchases, the weight of 
silver in a dollar fell from a gold value of 80 cents in 1890 
to ^8 cents in 1902. The history of the state bank notes, 
of the United States legal tender, and of the silver coinage, 
shows how dangerous to steady commerce is any change in 
the standard value, especially changes which are brought about 
for political and party reasons. 

215. Regulation of Commerce and Occupation. 

In supervision of ordinary trade and business, the United 
States participates indirectly through its tax system and its 
regulation of commerce. Congress requires in its laws, for 
instance, that liquor-dealers post up their licenses in public 



500 Organization of Commerce. [§ 215 

view ; that paper stamps be affixed to cigar boxes ; that railroads 
make proper returns to the Interstate Commerce Commission. 

The states directly and indirectly legislate on the conditions 
of business : for instance, the state tax laws frequently involve 
investigations into the receipts and profits of individuals and 
corporations. The states pass statutes specifically prohibiting 
or limiting occupations : for example, life-insurance concerns 
must keep deposits in the state treasuries to protect policy- 
holders, and are subject to official investigation of reserves, 
forms of investment, surrender values, and surplus. The bank- 
ing business is very strictly regulated : savings banks, for 
instance, are forbidden to invest except in securities of per- 
manent value, such as real-estate mortgages, state and munici- 
pal bonds, and the stock of other banks. Manufactories are 
regulated by enactments against undue noise or a smoke 
nuisance ; by laws requiring powder-mills and other similar 
dangerous manufactories to establish themselves at a distance 
from other concerns ; and by the inspection of food products. 
Hunting is regulated by the establishing of close seasons for 
fish and game. Agriculture is regulated by provisions as to 
the mortgage of standing crops ; the farmers are also aided by 
Congress by the distribution of seeds, by the collection and 
publication of crop statistics, by the maintenance of the agri- 
cultural experiment station, by bounties for the manufacture 
of sugar, for a time offered under an act of 1890. Mining is 
regulated chiefly by the states : an example is the law forbid- 
ding the use of naked lights in gaseous coal mines. 

Certain pursuits are forbidden by state laws. The lottery 
business is prohibited in every state ; but there is a vast 
amount of "playing policy" (a form of public gambling which 
consists in betting that certain numbers will be drawn) through 
concerns absolutely prohibited by law, which select their num- 
bers after the bets are in, which with honest management have 
odds of about five to one in their favor, and which cannot be 
depended upon to pay the winnings. Gambling houses are 
absolutely forbidden by law in every state, but they go on 



§ 2i6] Regulation of Labor, 501 

openly or secretly in every large city. In most states the pos- 
session of lottery tickets, policy slips, or gambling implements, 
or the being present at a gambling place, is a punishable offence. 
Many states also regulate professions, — as by prohibiting 
persons from the practice of medicine unless they have passed 
the examination of a state board, and lawyers from represent- 
ing clients before a court unless they have been duly admitted 
to the bar. In some states, druggists and drug clerks have to 
be licensed ; in others, plumbers and miners have to be ex- 
amined and licensed. Exclusion of unqualified persons from 
such occupations is not considered a violation of the rights of 
the individual, but a protection of the rights of the community 
at large. 

216. Regulation of Labor. 

The relation between the employer and the employee is one 
of the most frequent objects of legislation; and laws, usually 
in behalf of the laborer, appear on the statute-books of all 
states. The most common statute is for the protection of the 
life and limb of the laborer, by requiring the employer to 
use safety appliances and fire-escapes. In many states, the 
employer is held liable for damage to life or limb caused by 
the neglect of such precautions ; and this is the only effective 
means of securing obedience to the laws. 

Another form' of labor legislation is directed against the em- 
ployment of women and children. In 1890, of the children 
from ten to fourteen years of age, 600,000, or about one twelfth, 
were at work. In the Southern states, particularly in Alabama, 
child labor of the most wearisome kind is legal, and children as 
young as six years old are sometimes sent into the cotton-mills. 
In most of the Northern states, no child can be sent to work 
at all unless he has had several years of schooling. 

The hours of labor are the subject of many statutes. In 
1892 Congress enacted that eight hours should constitute a 
day's labor in the government service. In the states a ten- 
hour law is not uncommon ; in several of them eight hours 
constitute a day's labor unless otherwise agreed ; in some there 



502 Organization of Commerce. [§216 

is a ten-hour law for children. The labor unions have for 
years set themselves toward the goal of a universal compul- 
sory eight-hour law ; but such a requirement must necessarily 
except domestic servants and farm hands. Many of the states 
have established public holidays, on which factories and all 
places of business are closed. 

Another regulation of labor is the very common prohibition 
of the sale, in open market, of goods produced by convicts. 
This legislation tends to condemn to complete or partial 
idleness prisoners who are able and anxious to work hard 
enough for their own maintenance. Other legislation has in 
several states established arbitration boards for the settlement 
of disputes between employers and employees ; in a few cases 
such a board has a right to investigate and report without the 
consent of both parties. 

By indirection the states have also taken ground on strikes. 
Under the English common law, a combination of laborers to 
raise wages was in itself unlawful ; hence neither strikes nor 
trade unions could legally exist. Everywhere in the United 
States, laborers may associate peacefully for their common 
interests, and may cease work when they feel so disposed, 
either singly or in groups. Technically, a contract to work for 
a week or a month is as binding on the laborer as on the 
employer ; but, in case of breach of contract, the remedy for 
either is to demand, not specific performance, but damages. 
Thus, if the mill shuts down in the middle of the week, the 
man who has a contract for a week's work may sue for the 
remaining wages ; but the workman cannot compel the em- 
ployer to start up his mill, nor can the employer compel the 
workman to do his work, for that would be practical slavery. 
Since the employer usually has something from which a judg- 
ment may be collected, and the laborer has little property, 
the likelihood of getting a collectible judgment is much greater 
for the workman than for the master. 

The tendency of the American court is to tone down labor 
laws by holding the broader ones unconstitutional ; and, upon 



§ 217] Public Industries. 503 

the whole, the machinery of government and the make-up of 
society are more favorable to employer than to employee. 
On the other hand, the tendency is very strong toward per- 
manent acts restricting the hours of labor, protecting against 
accident, and relieving childhood from the terrible burden of 
stunting and stupefying labor. The doctrine that a man once 
employed has a property right in his place, such that, if he 
joins a strike and ceases work, he has the quasi-legal right to 
prevent another man from taking his place is not yet sup- 
ported by any statute or official decision. 

217. State and Municipal Industries. 

The usual attitude of the government toward industries is to 
protect the individual in his chosen pursuit unless it is destruc- 
tive of the morals of the community : government assures to 
the laborer that he shall not be molested in earning his wages ; 
to the property owner that he shall have peaceable possession 
of his property ; to the business man and the farmer that the 
sale and distribution of their products shall be undisturbed. 
The modern tendency is to go farther still : first and last, 
the national, state, and municipal governments exercise a con- 
siderable number of industries on public account. 

The national government is the largest publisher in the 
world, expending every year over ;g4,ooo,ooo for printing and 
issuing documents and books. It is a manufacturer, as in the 
government arsenals and navy-yards, where ships and materials 
of war are made. The post-office is so nearly self-supporting 
that it may fairly be considered a vast business for forwarding 
intelligence ; and it is much better conducted than the private 
express companies. It is not impossible that the federal gov- 
ernment will also become the proprietor of telegraphs and 
telephones, and even of the railroads of the country. The 
United States manufactures at its own expense bank bills for 
all the national banks. During the Spanish War it organized 
transport steamers, which were virtually a large freight and 
passenger line. 



504 Organization of Commerce. [§ 217 

Some of the states are engaging in public forests as a state 
industry. Most of them keep up some kind of manufacturing 
in their prisons and workhouses ; when prohibited by law from 
making standard goods, they often make furniture and other 
supplies for state institutions. The Southern states go into 
the business of leasing out convicts to private firms, to be used 
in railroad construction and like hard labor. 

In the municipalities we find the greatest number of public 
industries. No American city goes to the extent of the 
French, with public pawnshops and public restaurants, or 
imitates the English system of public tenement-houses ; but a 
large number of American cities engage in the business of 
supplying water and gas or electricity to private consumers, 
and there is now a manifest tendency toward the business of 
public street-cars. Wherever the town system prevails, there 
is a town hall, which is often let for private entertainments. 
The city of New York manages a large system of public 
docks for profit, and the city of Boston has a public printing 
establishment. 

An interesting case of state industry is the public monopoly 
of the hquor business in South Carolina. A system of " dis- 
pensaries " or public salesrooms is provided in which pure 
liquor is sold only in certain quantities and not to be con- 
sumed on the premises, the profits to go into the state treasury. 
The stock is purchased on state account. A somewhat similar 
system is that of state agents in prohibition states, who are 
designated to sell liquor for medicinal purposes. 

Most of the national, state, and municipal industries are 
extravagantly managed, perhaps because they aim, not to make 
money, but to furnish a convenience to the communities. The 
right to expend public money somehow unbalances some 
honest men, and leads them to a reckless and imprudent 
course which they would not adopt in their private business. 
Nevertheless, some of the most important municipal works, 
notably the Boston subway and the New York tunnels, have 
been managed prudently and to the public advantage. 



CHAPTER XXVII. 

TRANSPORTATION. 

218. References. 

Bibliography: Brookings and Ringwalt, Briefs for Debate (1896), 
Nos. 40, 41, 47-50, 53; A. B. Hart, Manual (1908), §§ 39, 40, 119, 120, 
143, 161, 224; R. C. Ringwalt, Briefs in Public Questions (1906), Nos. 
19-21 ; Channing and Hart, Gtcide (1896), §§ 174, 179, 185. 

Internal Transportation in General: J. L. Ringwalt, Develop- 
ment of Transportation (1888); E. C. Mason, Veto Power (1890), §§ 83- 
92; E. R. A. Seligman, Economics (1907), §§ 233-241; E. E. Sparks, 
Natiofial Development {Am. Nation, XXIII, 1907), ch. iv ; D. R. Dewey, 
Natiojial Problems {Am. Nation, XXIV, 1907), ch. vi; A. B. Hart, 
National Ideals {Am. Nation, XXVI, 1907), ch. xvi ; Industrial Commis- 
sion, Reports (1900-1902), IV, IX, XIX, pp. 259-481. 

Railroads: H. S. Haines, Restrictive Railway Legislation (1906); 
B. H. Meyer, Railway Legislation (1903); E. A. Pratt, Am. Railways 
(1903) ; J. Bryce, American Commonwealth (ed. 1901), II, ch. ciii; F. H. 
Dixon, State Railroad Control (1896) ; T. M. and C. H. Cooley, in N. S. 
Shaler, United States (2 vols., 1894), II, ch. ii ; A. T. Hadley, Railroad 
Transportation (1888), chs. ii-vii ; Industrial Commission, Reports (19 
vols., 1900-1902), IV, 1-32 (transportation); J. T. Hudson, Railways 
and the Republic (1886); C. F. Adams, Railroads (1878); E. J. James 
and others. Railway Question (Am. Econ. Assoc, Publications, II, No. 
3, 1887) ; H. V. Poor, Poor's Manual of the Railroads (annual volume, 
1868-). Interstate Commerce Commission, Annual Report; H. K. 
White, Hist, of the Union Pacific Railway (1895). 

Waterways : F. Johnson, Four Centuries of the Panama Canal {\go6), 
passim; C. N. Morris, I^tternal Improvements in Ohio (1899); J. R. 
Soley, in N. S. Shaler, United States (2 vols., 1894), I, ch. x ; E. R. 
Johnson, River and Harbor Bills, Inland Waterways (Am. Acad. Pol. 
Sci., Afinals, II, 782-812, 1892, Supplement, Sept. 1893); H. S. Tanner, 
Memoir on Inter?ial Improvement (2d ed., 1830); Commissioner of 
Navigation, Aftnual Report; Chief of Engineers, Annual Report ; C. S. 
Hill, Am. Shipping {iZZf, ; D. A. Wells, Our Merchant Marine (18S2) ; 
A. W. Bates, Am. Navigation (1902); J. D. Warner, Ship Subsidy 
Trust (1901). 

Traction System : E. W. Bemis, Municipal Monopolies (1899), ch. 
vii; J. A. Fairlie, Municipal Adminstration (1901), ch. xii ; A. H. Sin- 



506 Transportation. [§ 219 

clair, Municipal Monopolies (1891) ; C. Zueblin, Am. Municipal Progress 
(1902), ch. ii; F. Parsons, City for the People (1901), 27-100, 140-190; 
C. W. Baker, Monopolies and the People (3d ed., 1899), part i, ch. v; part 
ii, ch.ivjpart iii, ch. ii ; H. C. Adams and others. Modern Municipalities 
and Qtcasi-Piiblic Works (Am. Econ. Assoc, Publications, II, No. 6, 
1888) ; Am. Acad. Pol. Sci., Corporations a7td Public Welfare (1900), 63- 
76 ; Municipal Affairs, I, 421-457; III, 234-263, 473-490; IV, 31-59, 106- 
181, 212-221, 458-480; V, 419-594 (1897-1901). 

219. State and Interstate Commerce. 

With regard to private business, the American principle is, 
not to foster it, but to protect it against fraud and violence by 
statutes general in their terms. An opposite principle applies 
to transportation of freight and passengers, which so affects 
the conditions of all business and all private travel that it is 
carefully regulated by both state and national governments. 
The power of regulation is divided : movements of persons 
and commodities wholly within the boundaries of a state are 
normally subject only to the control of that state ; movement 
from state to state, or from the United States to foreign coun- 
tries, is subject to the federal government. Wagon transit, 
trolley lines, local railroads, the distribution of commodities 
into suburbs, are subject to state and local regulations. The 
movement of persons is ordinarily not restrained, except in 
the case of paupers and of people suffering from contagious 
diseases. In practice, fugitives flying to escape a pestilence 
have often been turned back by armed mobs. 

The United States has also, through its tax system, some 
control over commerce wholly within a state : shipments of 
liquor, for instance, are all subject to the investigation of the 
internal-revenue ofificers. Congress may authorize the bridg- 
ing of a navigable river, though both banks are within the 
same state ; the federal courts, through their admiralty ju- 
risdiction, may regulate navigation within a state ; and the 
United States may follow and deport an emigrant who has 
unlawfully come into the country. The system of through 
railroad transit is such that acts of the United States for 



§219] State and Interstate. 507 

regulating interstate commerce often virtually affect commerce 
within a state. 

The border line between state and interstate commerce is 
always difficult to draw. Navigation from one port in a state 
to another port in the same state is local ; yet in the great 
case of Gibbons v. Ogden (1824) the Supreme Court held 
that no state can grant exclusive rights of navigation in waters 
wholly within its limits, if they so connect with other waters 
as to be a part of an avenue of interstate and foreign com- 
merce. The states have repeatedly attempted to limit railroad 
transit by taxation : in 1872 a Pennsylvania act imposing a 
tax on freights from Pennsylvania to other states was held 
invalid. Taxes on commercial travellers have been laid, but 
have always been invalidated on the ground that the states 
cannot indirectly tax or regulate even the soliciting of business 
from state to state. Attempts at state regulation by inspec- 
tion acts on meats and other products brought into the state 
have been prevented by repeated decisions of the Supreme 
Court. 

An occasion of serious controversy is the carrying of liquor 
into states which prohibit its manufacture and sale. In the 
test case of Leisy v. Hardin (1890, commonly .called "the 
original package decision "), the Supreme Court held that no 
state could prevent the sale and delivery of liquors in the 
original packages in which they had been shipped from an- 
other state. To meet this difficulty, Congress on August 8-, 
1890, passed the Original Package Act, which provided that 
liquors imported into any state were subject to the operation 
and effect of the laws of that state. 

During a century, Congress made few specific regulations of 
commerce except those concerning navigation, especially by 
steam vessels; but in 1887 the Interstate Commerce Act, in 
addition to the creation of a commission for the regulation of 
railroads, elaborately legislated against unreasonable charges, 
discriminations, or preferences, against pooling and excessive 
short-haul rates. This statute has repeatedly been amended 



508 Transportation. [§ 220 

and strengthened. In March, 1893, Congress passed an act 
that, after January i, 1898 (later extended to January i, 
1900), no car used in interstate traffic should be moved 
unless equipped with automatic car-couplers, which could be 
uncoupled without the men going between the cars. The 
result was that the number of coupling accidents diminished 
from over 8,000 in 1890 to about 5,500 in 1901, with a much 
larger train movement. 

220. Transmission of Intelligence. 

Control of the means of conveying intelligence has from 
remotest times been considered a proper function of govern- 
ment. A post-office system was introduced into the colonies, 
and Benjamin Franklin was the first postmaster-general. 
Under the Confederation this became a national institution, 
and by the federal constitution Congress was granted the ex- 
tensive power to " establish post offices and post roads." For 
half a century the post-roads were bad ; much of the mail was 
carried by horsemen, and the postage was high. 

In the thirties and forties came about a great reform, based 
upon the discovery that low postage brought a greater return 
to the government. Postage was reduced in the United States 
in 1863 to three cents, and in 1883 to two cents, with the 
expected enormous increase of correspondence. International 
postage has also been reduced, till among the Western na- 
tions and many other parts of the world, united in a postal 
system, it is but five cents a half-ounce on sealed letters. 

In the United States the post-office is a strict government 
monopoly : no private individual may step in and take the 
cream of the business by establishing a private post between 
or within large cities. The head of the postal service is the 
postmaster-general, who has under him four assistant post- 
master-generals, an army of clerks in Washington, 9,700 rail- 
way mail clerks throughout the Union, 76,000 postmasters 
and 21,000 clerks, 18,000 letter-carriers, and 12,000 rural 
mail-carriers, besides other helpers. More people are con- 



§ 22o] Transmission of Intelligence. 509 

nected with the United States post-office than with the United 
States army and navy. The mail is carried by all sorts of 
public conveyances, — steamers, railroads, stages, trolley lines, 
buggies, horsemen, and men on foot. The railway mail ser- 
vice is the principal item of expense ; for the mails are sorted 
while the trains are in motion so as to hasten the delivery. 

The main principles of postal business are : (i) The equal 
right of all persons to use the mail, subject to the very impor- 
tant restriction that immoral, abusive, and obscene matter is 
excluded from it. In 1872, lottery, gift, and other fraudulent 
enterprises were forbidden the use of the mail ; and letters 
addressed to banks and express companies, but presumably 
intended for lottery companies, are also undeliverable. Many 
thousands of letters are seized annually under this law. 

(2) The second principle is that of the secrecy of the mails : 
it is a criminal offence for a postmaster or any other individ- 
ual to open a letter addressed to another person, unless it is 
seized by regular process of law. 

(3) The next principle is that the postage shall be low : 
sealed letters are sent from end to end of the country for two 
cents, postal cards for one cent ; and this includes delivery by 
carrier in all towns of 10,000 population and upwards, and in 
many rural districts by a new system of rural carriers. The 
postage on the circulation of newspapers is very low, — one 
cent a pound on their weight ; this so-called " second-class 
matter " has been twisted to include advertising and occasional 
publications having no subscription lists and hence no real 
right to be classed as newspapers. 

The government carries single newspapers, books, photo- 
graphs, and other matter at rates decidedly higher than are 
asked for the same service in most foreign countries. Owing 
to the great loss on second-class mail matter (the government 
pays on it about ^29,000,000 a year, and receives about ^4,000,- 
000), and to the great amount of business performed for the 
federal government, the post-office receipts are always less 
than the expenditures. The number of post-offices in 1902 



51 o Transportation. [§220 

was 76,000, the revenue $122,000,000, the expenditures 
;^i 25,000,000 ; and 8,000,000,000 pieces of mail matter were 
forwarded. 

The post-office performs several special services : for a fee 
of eight cents it registers a letter and insures it to the value 
of $25 ; for ten cents it sends a letter by special messenger to 
any point within a mile of the receiving post-office ; for small 
fees of from i per cent to | per cent it furnishes money orders. 
As yet the government has not assumed the monopoly of 
carrying small packages, which is a serviceable function of 
several foreign post-offices. 

In nearly all European countries the telegraph is also a 
government monopoly, partly because the diffusion of public 
intelligence is a public service, and partly because it can be 
much more cheaply carried on in connection with the post- 
offices. The United States was the home of the invention of 
the telegraph, — the first message ever sent over a wire was 
received in Washington in 1844 ; but the business was organ- 
ized at haphazard by local companies, which were gradually 
concentrated until the sixties, when most of them were united 
in the Western Union Telegraph Company, which now has 
offices in every considerable place in the Union. Competing 
companies have repeatedly been formed, but the Postal Tele- 
graph Company is the only one that has not been absorbed. 
The Western Union Company in 1902 had 196,000 miles of 
lines, and reported 69,000,000 messages, receipts of $28, 000,- 
000, and a profit of $7,000,000. The rates are rather higher 
for the same service than in foreign countries : in England a 
twenty-word message costs a shilling, while a ten-word message 
from New York to Chicago costs forty cents. It has often 
been suggested by postal authorities that the government 
ought to absorb the telegraph lines and work them in con- 
nection with the post-office ; but as yet no progress has been 
made in that direction. 

A newer means of transmitting intelligence is the telephone, 
which was invented as a practical talking-machine about 1876, 



§ 22i] History. 511 

and has now extended over the Union. The business is in 
many places controlled by one company, the American Bell 
Telephone Company, which has about 2,000,000 instruments 
in operation. The company has no legal monopoly ; but it 
controls valuable patents, and it is difficult for competitors 
to work in, since everybody wants to be connected with the 
exchange used by everybody else. This service might well 
be made a government monopoly, to be worked in connec- 
tion with the post-office and telegraph. Since the operation 
of each exchange is local, the telephone service is subject to 
state restrictions, with the result that the same kind of service 
that in one state costs $12 a year, two miles across the line in 
another state may cost ^30. 

221. History of Modes of Transportation. 

Local, state, and national governments have always con- 
cerned themselves with the avenues of communication. The 
earliest regular ways found in America were the buffalo paths, 
which intersected all the country inhabited by those animals. 
Almost of equal antiquity were the Indian trails,' footpaths 
worn by immemorial use along the divides and across the 
carries or portages, from the head of one stream to that of 
another, — as at Fort Wayne (Indiana), Portage (Wisconsin), 
and Portage (Ohio). With the white man came the pack- 
horse, and the early frontier paths were used only by foot-trav- 
ellers and beasts of burden. 

The construction of wagon roads began in colonial times, 
but was a task of centuries : for primeval trees had to be cut, 
and ways made round or over the stumps ; swamps were 
avoided by detours, or crossed by " corduroy roads " (trunks 
of trees laid side by side) ; bridges were few, and the fords on 
many streams were impassable when the waters were up. In 
New England the earliest roads ran along the hilltops, because 
it was easier to clear farms up there, and few bridges were 
needed. Down to 1789 there was probably not a road in the 
United States that was good after heavy rains. 



512 Transportation. [§221 

Soon after the Revolution began the era of pikes, — that is. 
roads covered with broken stones, which under pressure con- 
solidate into a waterproof surface. Many streams were spanned 
by permanent stone bridges, and Americans developed a 
special art of building wooden bridges of considerable span. 
Many highways were raised, drained, and graded. From 1790 
to about 1840 hundreds of miles of such roads were con- 
structed by private turnpike companies, which received the 
right to collect toll. The era of steam navigation on lake and 
river began in 1807 with the success of Fulton's craft, and is 
still a favorite means of freight carriage on river, lake, and 
sea. Canal construction is as old as Assyria ; but the Dutch 
canals, with locks to raise boats from one level to another, 
came into England only about 1760. A few short lines were 
constructed in America between 1780 and 1800; but Madi- 
son's veto of the Bonus Bill in 181 7 for the time prevented 
the federal government from aiding in this construction. The 
task was too great for private capital, and the state of New 
York at once began to construct the Erie Canal, and finished 
it from tide-water to Lake Erie in 1825. The example was 
followed by most of the states west and south of New York. 

About 1830 a new mode of transportation was introduced, 
the railroad. The first line of parallel rails used for transporta- 
tion in the United States was from a quarry near Philadelphia 
three quarters of a mile to tide-water, in 1810. The first 
line to use steam locomotives successfully was the Baltimore 
and Ohio, of which a short section was constructed in 1830. 
Within ten years railroads began to take away the passenger 
travel of the slower canals; by 1853 there were connecting 
railroads extending all the way from New York to Chicago ; by 
i860 one railroad line, the Hannibal and St. Joseph, crossed 
from the Mississippi to the Missouri River; by 1S69 there was 
through ran connection from ocean to ocean. Half a dozen 
states built or subsidized railroads ; but from the first most 
of them were constructed by private capital, under special 
legislative charters. 



§ 222] Highways and Streets. 5 1 3 

At first the railroads were built in short lengths, with a 
change at the end of each little link ; and were of various 
gauges, from 4 feet up to 6 feet, a system which required fre- 
quent transshipment of car-loads. During and after the Civil 
War rose a race of railroad kings, of whom the best known 
was Cornelius Vanderbilt ; he consolidated the various local 
roads between New York and Buffalo, making a great trunk 
line. Then, from 1875 to 1890 came a period of alteration 
of gauges ; till now all the main roads of the country are of 
the same gauge, — namely, 4 feet 8 inches, — and cars once 
started may be sent thousands of miles without reloading. 

The railroads speedily began to parallel the canals, with 
which they competed ; even for heavy freight, because they 
were not interrupted by ice or washouts ; and, except the Erie 
Canal, that from the Hudson to Lake Champlain, and some 
coal-carrying canals in Ohio and Pennsylvania, the inland 
canals have all been abandoned. Steam navigation on the 
rivers has also been paralleled, and almost destroyed, by rail- 
road competition ; just as the railroads were becoming the 
one great means of transportation, arose the system of elec- 
tric lines, built for the most part on roads and streets, grad- 
ually extending into systems many miles in length, busily 
competing for the passenger traffic everywhere, and in a few 
places also for the freight business. 

222. Highways and Streets. 

Power over the means of commerce is divided in the same 
way as over the objects of commerce : the United States may 
either restrict or further commerce between the states or with 
foreign nations ; hence it may establish regulations for, or it 
may aid, highways, canals, railroads, and navigable streams and 
channels available for interstate and foreign commerce. In 
practice the United States has made few restrictions on means 
of transportation, and has aided few ; the states and their 
creations, the local governments, have built, or aided, or 
authorized, or control, most of the means of land transport. 

33 



514 Transportation. [§222 

Some of the states nominally subdivide the highways into 
state roads, county roads, and town roads ; but, though roads 
when first built may be aided by state or county taxation, the 
maintenance usually falls to the local governments, and this is 
one of the many reasons why the United States has the poorest 
highways among all civilized nations. Germany, Austria, Russia, 
Italy, Switzerland, and England build magnificent roads, always 
kept in order, hence capable of accommodating loads from two 
to four times greater, with the same number of animals, than 
is possible on most American highways. 

The principles of proper road-building as seen in foreign 
usage are as follows : — (i) The road is only wide enough for 
two vehicles to pass comfortably, besides a footpath and the 
necessary ditches ; and the land is cultivated on both sides up 
to the edge of the ditch. (2) Many roads are shaded, often 
by two rows of fruit trees. . (3) Foreign roads are well surfaced 
and are kept in repair ; in thinly-populated mountain districts 
are good stone roads, always shedding the water to the side, 
never gullying or rutting, and hence always passable at good 
speed and with heavy loads. The money that is spent on the 
highways in most of our hill towns is multiplied by trying to 
keep up steep roads, which inevitably wash out, and by putting 
soft material into the middle of the road, where it is certain to 
make mud. In a soft prairie state like Illinois, continued 
heavy rains make the ordinary highways literally impassable 
for wagons. (4) Foreign roads are crooked : by skilful en- 
gineering the road accommodates itself to the lie of the 
ground, habitually going round the hill instead of over it, and 
is as carefully engineered as a railroad. The up-hill and 
down-dale roads of New England and New York and Penn- 
sylvania would be thought preposterously wasteful in Central 
Europe, because of the strain on horses and vehicles caused 
by going over the bail of the kettle set up perpendicularly 
instead of going round it as it lies flat. (5) Foreign roads 
are surveyed, built, and maintained by expert roadmasters, 
paid out of the public taxes ; whereas in many parts of the 



§222] Highways and Streets. 515 

United States the person responsible for the roads is ignorant 
of the true principles of road-making, and farmers are allowed 
to practise the wasteful and unprofitable system of working 
out their taxes on the road. 

Since about 1890 efforts have been made to improve Ameri- 
can roads. The state of Massachusetts has appropriated 
$4,500,000 in nine years; and the money has been spent in 
building short sections well graded and well surfaced, as an 
example to the towns, which have shown entire willingness 
that state money be spent within their limits, and decided 
unwillingness to add to it out of their own taxes. Other 
states, as New Jersey, have appropriated generously to a 
township or a county which would spend an equivalent 
amount : but as yet the conception has not found lodgment 
in the popular mind that properly-built roads add to the value 
of all the lands along their line, by making it cheaper and 
easier to get crops to market ; and that to be good, a road 
must be kept in constant repair. 

The United States has built one considerable wagon road, — 
the National Road, begun in 1807 at Cumberland, Maryland, 
and in the course of about forty years continued westward to 
Vandalia, not far from St. Louis. This road was well engi- 
neered and surfaced, and became a great highway for the 
settlement of the Western country. It has long since been 
turned over by the general government to the states through 
which it runs, and parts of the mountain sections are no 
longer in use. 

In towns, and especially in cities, it is absolutely necessary 
to build some sort of permanent street which shall not be a 
quagmire whenever it rains hard. There are many forms of 
street pavement, of which the poorest is the cobble-stone ; a 
better type is the ordinary rough-squared paving-stone ; and 
the best are the smooth, even, and permanent pavements of 
Belgian block stone, wood, brick, or asphalt. In general, 
American cities are ill paved, no matter how expensive the 
pavements : either there is no suitable foundation, so that the 



5 1 6 Transportation. [§ 322 

surface knocks into holes ; or the pavement is torn up from 
end to end in order to lay pipes, and is never properly 
restored. 

A good pavement will cost more per square yard than 
Turkey carpeting, and may not last more than ten or fifteen 
years. In some cities all pavements are constructed by the 
municipalities, and hence people are eager to get their streets 
paved. In most Western cities, pavements are a charge on 
the abutting property, and the owners fight them off as long as 
they can. In Philadelphia, twenty-five years ago, there was a 
street on which every abutter was allowed to lay the kind of 
pavement that he liked best. Sidewalks are usually at the 
charge of the abutter ; some cities, like Boston and Phila- 
delphia, have great stretches of brick sidewalk ; in the West, 
stone flagging is more common. In villages and in some 
cities, plank sidewalks are common, and are convenient so 
long as they last. Footpaths carefully made along country 
roads are very uncommon ; and still more so are "cut-offs," 
hke the ancient English footpaths, which are public rights of 
way across fields and from village to village. 

When the country was poorer, from the Revolution to about 
1850, toll bridges were common; but the tendency is now to 
make all bridges a part of the free highway. Private turnpikes 
are now little known in the Northern states, though they are still 
common in the South ; they are constructed on public roads 
by toll companies who have the right to put up gates and ex- 
clude all those who cannot pay a rather high toll. It is a 
wasteful system, for the community in the end must pay the 
cost of building and maintaining the road, and also of keeping 
up the company and paying its dividends. It is a public 
saving in the long run to remove every private monopoly of 
the highways. 

The United States makes one restriction with regard to 
bridges, — namely, that no navigable stream shall be crossed 
except by a bridge which shall be approved by the secretary 
of war. The plan of the proposed great bridge across the 



§ 223] Rivers and Canals. 5 1 7 

Hudson River at New York City, authorized in 1894, was 
abandoned because the secretary would not allow a pier in the 
river. 

223. Navigable Rivers and Canals. 

America has magnificent natural waterways. As the Atlantic 
front is a drowned coast, which has subsided since the river 
channels were cut, the sea creates such estuaries as those of 
the Kennebec, Merrimac, Charles, Connecticut, Hudson, Del- 
aware, Susquehanna, and James, penetrating far up into the 
country. On the north is the chain of Great Lakes, which is 
really a broad, expanded river system, with the head waters at 
Chicago and Duluth, and with the mouth at Buffalo. The 
tributaries of the Mississippi descend with scarce a rapid from 
points a few miles below their sources in New York, Minne- 
sota, Montana, and Colorado to the Gulf of Mexico, a turbid 
system of liquid roads converging on New Orleans. 

The network of interior rivers, as well as the lakes, are 
subject to federal control, as parts of a system of interstate 
navigation. On both lake and river the " rules of the road " 
are enforced so as to prevent collisions, and steamboats are 
inspected annually by federal authorities. 

The federal government has also spent immense sums in 
improving the internal river and lake navigation. The prin- 
cipal works are as follows : — 

(i) Canals around the few points interrupted by rapids or 
shoals, especially at Moline (Illinois) and Louisville. Large 
sums have also been spent in improving the channels of the 
Detroit and St. Mary Rivers, and especially on the duplicate 
canals around the falls of Sault Ste. Marie. The lake com- 
merce is enormous : the tonnage passing through the Sault 
canals on the American side alone in 1902 was 32,000,000, 
and the tonnage through the Detroit River was greater than 
that through the Suez Canal. Though most of the Western 
rivers tributary to the Ohio and Mississippi are deserted by 
commerce, large sums are still spent in improving them. 



5 1 8 Transportation. [§ 223 

The Muscle Shoals Canal on the Tennessee has cost $3,500,- 
000, to accommodate annual commerce worth about $300,000. 
On the Missouri River above Kansas City there are no regular 
steamers plying; yet $5,000,000 has been spent on the river 
since 1890, 

(2) Attempts to confine the rivers and prevent changes of 
channel by a system of levees, or artificial dikes, particularly 
in the Lower Mississippi Valley. 

(3) Very expensive works on both the Mississippi and the 
Missouri, to secure deep water by confining the channel 
between walls. It is not yet certain that the expensive re- 
vetments of the Mississippi will stand a phenomenal flood. 
Since the Civil War the United States has expended about 
$125,000,000 on the Mississippi and its tributaries, now all 
paralleled by railroads. 

(4) The jetty system at the mouth of the Mississippi and 
other gulf ports, which, by the construction of narrow, straight 
outlets confined between sea-walls, forces the rivers to dig out 
the bars themselves and make deep-water channels out to sea. 

Nearly all the interior canals in the country have been 
constructed by the states, or by companies chartered and 
favored by the states. Of these the most costly and the 
most satisfactory is the Erie Canal, 363 miles long, with a 
summit level of 570 feet above the sea. The original cost 
was $9,000,000, to which down to 1895 had been added 
$56,000,000 for enlargement; the receipts for tolls down to 
1883, when it was made free, were about $135,000,000; 
repairs had cost about $42,000,000 ; since 1895 ^^^ state has 
paid for additional enlargement $9,000,000. New York also 
owns the Oswego Canal to Lake Ontario, and the Champlain 
Canal to Lake Champlain, connecting thence to Canada. 
The total amount spent by New York for canal construction, 
without counting repairs, has been $94,000,000. 

Pennsylvania tried to equal the success of New York, but 
nature was not propitious. Canals were constructed up the 
Juniata, up the west branch of the Susquehanna, and from 



§2 24] Internal Improvements. 519 

Pittsburg eastward to the foot of the mountains and northward 
to Lake Erie, at a cost of ^42,000,000; but, at the highest 
success, boats built in sections were floated to the neighborhood 
of Altoona, hoisted over the ridge by inclined railroads, and 
let down to meet the Western canal. This whole system is 
now abandoned, as is the Maryland canal parallel with the Poto- 
mac to Cumberland and intended to cross the mountains, and 
the Virginia canal up the valley of the James. Ohio has spent 
$15,000,000 for canals, Illinois $7,000,000, Indiana $9,000,000 ; 
but the only link now in actual operation in those states is 
from Cleveland on Lake Erie to Portsmouth on the Ohio. 

The capital spent in canals outside New York, aggregating 
nearly $80,000,000, is not a total loss, for it cheapened trans- 
portation for many years, and for some time remained a 
wholesome check on railroad rates ; but many of the canals 
were expensive to build, very expensive to maintain, and never 
could command enough traffic to justify them. 

A few profitable lines of canal exist across New Jersey and 
in the coal regions ; but in the last thirty years no important 
line of state canal has been constructed except the Calumet 
Canal, which is virtually an outfall sewerage system for Chicago. 
New York is now considering putting another hundred millions 
into the Erie Canal ; otherwise, if any further canal systems 
are constructed they must be built by the federal government. 

224. Harbors and Internal Improvements. 

Federal works for waterways and water entrances of every 
kind are called "internal improvements," and are covered 
by "river and harbor bills," passed commonly once in two 
years. Expenditures for these purposes did not begin till 
nearly twenty years after the adoption of the constitution, and 
from 1806 till 1822 were confined to the Cumberland Road. 
In 1808 Secretary Gallatin reported a comprehensive scheme 
for roads or canals from Maine to Louisiana, and from Wash- 
ington to Detroit; and in 1816 a strong movement was made 
for national aid. 



520 Transportation. [§ 224 

The system was attacked on constitutional grounds, first by 
Madison in his veto of 1817, then by Monroe in his veto 
of May, 1822, later by Jackson in several vetoes. Though 
these three presidents failed to find in the constitution 
any authority for such improvements, friends of the vetoed 
measures discovered abundant implied powers in the authority 
of Congress to regulate commerce, to establish post-offices 
and post-roads, and to make war, since good roads and canals 
would facilitate all those powers. The constitutional objec- 
tion was repeated by Polk, Pierce, and Buchanan in lively 
vetoes ; but since the Civil War it has practically disappeared 
from view. In making up the river and harbor bills, the 
combination between the Eastern coast interests and the 
Western river interests causes these bills to appeal to both 
sections ; and the Lake and Pacific coast members join in. 
The appropriations for this purpose from 1822 to 1902 
amount to about ^400,000,000. 

Harbor improvements are of two kinds: (i) Breakwaters 
and piers, as protections to shipping. The Delaware break- 
water in Lower Delaware Bay, and Holmes Hole off the 
island of Martha's Vineyard, sometimes protect hundreds of 
sail. The lake harbors on Michigan, Erie, Ontario, and Supe- 
rior, especially Chicago, Cleveland, Buffalo, and Milwaukee, 
have huge breakwaters. (2) The deepening of harbors, prin- 
cipally by dredging, so as to keep passages open across the 
bars which form where the river currents, carrying detritus, 
strike the colder and heavier tide-water ; and the removing 
of obstructions in the bottom of channels. From 1867 to 
1899 the government spent over ;^4, 000,000 in undermining 
a reef in Hell Gate, just above New York City ; and most 
of the Southern harbors require very expensive works to reach 
deep water, as at Charleston, Savannah, New Orleans, Aransas 
Pass, and Galveston. 

The expenditure of the federal government for these objects 
is intrusted to the secretary of war, and is supervised by gov- 
ernment engineers, who are military officers. Without a pre- 



§225] Internal Improvements. 521 

liminary survey and report on the cost of a new improvement, 
it is difficult, though not impossible, to get an appropri- 
ation. These estimates are gathered together and submitted 
to the River and Harbor Committee of the House, which 
then prepares a bill. The appropriations are very detailed, 
but are subject to the general restriction that they must be 
spent by the secretary of war, who may not pay out all the 
money appropriated if he cannot find the place to spend it 
wisely. 

The great defect of the river and harbor legislation is that 
small and inconsequent items are often inserted, that it is im- 
possible to get Congress to appropriate once for all for a great 
improvement ; hence work is delayed and interrupted by 
waiting for the necessary continuing appropriations, and ex- 
pensive works may be destroyed because money enough has 
not been authorized to bring them to a condition where they 
are safe. Government work is invariably expensive, even when 
contracts are made with private parties. The expenditures 
on the larger harbors and the greater rivers have stimulated 
commerce ; but there are some cases of very extravagant use 
of the public money. For example, the canal constructed be- 
tween the Fox and Wisconsin Rivers, intended to connect Lake 
Michigan with the Upper Mississippi, which has cost the gov- 
ernment $3,000,000, is practically of no service to navigation, 
and is chiefly useful for furnishing a gratis water-power to 
private mills. 

* 
225. .Railroads. 

Since a railroad must have a right of way, requiring the use 
of the state's privilege of eminent domain, the construction of 
railroads rests almost wholly on state authority. The early lines 
were short, and many of the states undertook to build for them- 
selves. For instance, in 1837 Michigan authorized a loan of 
^5,000,000 for internal improvements, purchased a previous 
private charter of the Detroit and St. Joseph Railroad, and 
built a heavy wooden framework all the way as a basis for 



522 Transportation. [§225 

strap iron rails. In 1841 the line kept four locomotives busy, 
but in 1846 it was sold to a private company, Ohio, Georgia, 
North Carolina, and other states built pieces of state road at 
different times ; and Massachusetts aided in the construction 
of three roads to the Hudson River, — the Boston and Albany, 
the New York and New England, and the Hoosac Tunnel 
Line. Of all these state systems, a few score miles owned 
by the states of Georgia and North Carolina, but now leased 
to private companies, are the only relics. 

There were various reasons for the substitution of the private 
system, (i) State railroads had to stop at the sta.te boundary; 
whereas private roads, with charters in both states, easily ran 
from one to the other. (2) The Western states were poor and 
heavily in debt, and were glad to realize on their property. 
(3) State railroad management was subject to powerful local 
influences. (4) No state railroad in the whole country ever 
paid a steady interest on the cost of its construction. 

The system of private railroad charters also had its defects, 
(i) Most early communities were eager to get railroads, and 
were over-generous with charters. Some states, indeed, regu- 
larly inserted provisions retaining to the states the right to buy 
in the railroads at any future time, and others made restric- 
tions as to the rates of fare ; but few states, if any, required 
the publication of accounts in ways which would protect in- 
vestments, or from the beginning adequately taxed either the 
road-beds or other property of the railroads. (2) Many of 
the early private companies failed : the original stock of the 
Erie Railroad, for instance, was all wiped out of existence 
twice before it became a paying property. 

Nevertheless, with interruptions during the various coni- 
mercial panics, the construction of railways has steadily gone 
forward. In 183 1 there were 140 miles ; in 184 1, 3,400 miles; 
in 1851, 10,000 miles; in 1861, 30,000 miles; in 1871, 50,- 
000 miles; in 1881, 100,000 miles; in 1891, 164,000 miles; 
in 1 90 1, about 200,000 miles. This does not include second 
tracks and sidings, which make about 70,000 miles more. 



§ 225] Railroads. 523 

The capitalization of the roads was nearly $13,000,000,000 in 
1 901 ; they carried 600,000,000 passengers, and over 1,000,- 
000,000 tons of freight; and they earned $1,600,000,000, of 
which over ;^5 00,000,000 was net. About 1,000,000 persons 
are employed in the railroad service. 

The enormous traffic of railroads makes them the most im- 
portant private interest in the United States : they affect every 
community, and nearly every individual. That the railroad 
business is conducted so smoothly and easily, that only about 
one passenger in a million is killed or injured, that freight 
reaches its destination in most cases, that the employees are 
kept busy and paid, is a tribute to the great organizing power 
of the American. 

Railroads come under the general legal principle of the 
"common carrier," — that is, they are compelled by law to 
carry every decent person who desires passage and can pay 
the fare, to receive everybody's shipment of freight, and to 
charge all persons the same rate for the same service. Pas- 
senger rates are stable and little subject to manipulation, except 
that too many people who can best afford to pay their fares get 
free transportation. Through fares are very low, — about two, 
two and a half, or three cents a mile for long distances ; local 
fares run up from two to ten cents a mile according to local- 
ity, and are higher than in most European countries. 

Railroad management is, however, subject to many irregu- 
larities which do not always appear on the surface. It is easy, 
for instance, to discriminate between shippers by giving special 
rates on heavy shipments ; and especially by charging the 
same nominal rate to all comers, but allowing rebates to the 
favored. Since the greater part of railroad business passes 
over the lines of at least two companies, much of the business 
is done by fast freight and parlor-car companies, which can 
be so managed as to take the profit away from the ordinary 
stockholder of the railroad. Then, in the consolidation of 
railroads, minority stockholders, or the owners of small lines, 
are often badly treated. 



524 Transportation. [§ 225 

To face these difficulties there are only two agencies, the 
states and Congress. Since nearly all the charters spring 
from the states, the states may prescribe regulations for the 
speed of trains, the character of the accommodations, the pro- 
tection of grade crossings, the management of stations, and like 
matters ; and they may regulate rates on business which begins 
and ends within a state. About half the states in the Union 
have railroad commissions, some of them empowered to issue 
positive directions to the railroad companies, others having 
only the right of investigation and public report. In the 
seventies, the so-called " Granger movement " was a pressure 
on the state legislatures to reduce railway rates. Later the 
Supreme Court held, in the case of S;f. Louis, etc. v. R. R. 
Co. (1895), that any state regulation must be "reasonable," 
and that the courts must judge whether a given rate is " rea- 
sonable " in the legal sense. No state law can control the 
interstate commerce of persons or goods : if the states attempt 
to tax railroads or steamship companies on interstate business, 
or to regulate such traffic by inspection laws, the Supreme 
Court disallows the statutes. 

By 1880 the railway business got into confusion, through the 
reckless competition of parallel lines. The trunk lines from 
Boston, New York, and Philadelphia to the Western cities 
tried to protect themselves by "pools," — that is, agreements 
under which each of the trunk lines was to have a certain share 
of the through tonnage and receipts. At the same time, in 
order to secure through business, and especially export busi- 
ness, the railroads got into the habit of making lower rates 
from the great distributing centres of the interior to the sea- 
board, and vice versa, than on shorter distances on the same 
lines. For instance, the rate from Chicago to Harrisburg was 
regularly higher than the rate from Chicago to New York, to 
the great distress of the people of the smaller cities. 

The question grew so serious that in 1887 Congress passed 
the drastic Interstate Commerce Act, which introduced many 
reforms, (i) The rates of transportation for both passengers 



§225] Railroads. 525 

and freight must be posted publicly in large type, and may 
not be raised or lowered without notice. (2) Railroads are 
compelled to furnish abstracts of their accounts in a pre- 
scribed form. (3) Discriminations and secret advantages are 
absolutely prohibited. (4) Both pools and short-haul discrim- 
inations are positively forbidden. (5) To carry out these 
provisions a commission of five members was organized, each 
to have a six-year term, with power to investigate and hear 
complaints, and to direct railroad or steamship companies to 
remedy them. 

The commission set to work, but in its existence of fifteen 
years it has not accomplished what was hoped from it. It is 
both administrative and judicial. Petitions to it take the 
form of suits against railroad companies, with counsel and 
judicial procedure ; this makes it an anomalous court, and it 
has not sufficient power to execute its own decisions. It is 
difficult to get evidence of special rates, because neither the 
persons who profit by them nor the railroad will complain ; 
and, if summoned by the commission, they sometimes refuse 
to testify, on the ground that such testimony may criminate 
them. The commission has obtained fair returns of the rail- 
road accounts, which it publishes in annual reports ; it has 
done much also to bring to public attention cases of railway 
discrimination; it has published its decisions in a series of 
regular judicial reports, and has thus established a body of 
railway law : but it has never succeeded in breaking up dis- 
criminating rates to large shippers, or secret concessions to 
friends of railroad officials. 

The struggle for business between the trunk-line roads has 
been reduced by the steady progress of railway consolidation. 
The New York Central Road bought up the West Shore and 
Nickel Plate Lines from New York to Chicago in order to 
stop competition ; the Pennsylvania Railroad got control of 
its rival, the Baltimore and Ohio; and about the year 1900, 
owners of the consolidated systems came to a friendly under- 
standing, which practically means that these four trunk lines 



526 Transportation. [§226 

are conducted as one system, that they can dictate to the 
weaker roads, such as the Erie and the Grand Trunk, and 
that business can be divided by a quiet understanding, with- 
out violating the pooling clause of the Interstate Commerce 
Act. The roads from Chicago to the Mississippi have come 
under a similar understanding: in 1901 an attempt was 
made to consolidate the Northern Pacific with the Great 
Northern ; it was resisted in the courts, but the two systems 
are operated under one management. The Southern rail- 
roads have also been combined into a few large systems ; 
and the general policy of all the railroads in the country 
is probably dictated by less than twenty persons, who act 
through a friendly understanding. Some observers feel con- 
fident that this is simply a stage on the way to a national 
ownership of the railroads. 

226. Public Aid to Railroads. 

Besides the construction of a few state railroads in 1830— 
1850, the national, state, and local governments have fre- 
quently given aid to new roads without controlling them, 
(i) The right of way of many of the railroads through 
public lands has been given by the United States ; through 
state lands, by states ; and through streets, by cities. The 
New York Central Road runs the whole length of Syracuse 
on grade in the middle of the highway, by permission of 
the city government. (2) The states have frequently sub- 
scribed for stock in railroads : Virginia between 1837 and 
1857 made more than twenty such investments. (3) The 
states have frequently given or lent money to railroads : in 
i860 six railroads together owed the state of Alabama 
nearly ^1,000,000; and the state of Massachusetts in 1867— 
69 lent $3,600,000 to the Boston, Hartford, and Erie Rail- 
road. (4) Local governments have frequently been author- 
ized to subscribe for stock, or to make cash bonuses to 
railroads ; and many counties, towns, and cities have run 
heavily into debt in order to bring new railroads. The city 



§ 226] Public Aid to Railroads. 527 

of Baltimore has always been a heavy stockholder in the 
Baltimore and Ohio Railroad ; and the city of Cincinnati 
now owns the Cincinnati Southern Railroad, which cost over 
;^20,ooo,ooo. (5) Railroads have practically had public aid 
by an almost universal system of low taxes. 

The United States began its relation with railroad con- 
struction by inaugurating a system of land grants in 1850. 
The Illinois Central and other roads radiating west and 
northwest from Chicago, though chartered by the states, 
received heavy national grants of land. When in 1862 the 
Pacific railroads became necessary, most of the line was 
through territories ; and therefore the federal government 
itself enacted the charters, and bestowed on the companies 
land grants aggregating about 100,000,000 acres. The usual 
method of land grants was to give to the railroads the 
alternate sections in a strip of land sometimes twenty miles 
wide, and to sell the remaining sections at double price. 
The money value of these gifts is hard to estimate, but it 
was probably not less than ^200,000,000. The United 
States also advanced money to the Pacific railroads under 
the act of 1864, by issuing bonds (at $16,000 to $48,000 
a mile for completed roads) to four companies, — the Union 
Pacific, Kansas Pacific (including the Central Branch), Sioux 
City and Pacific, and Central Pacific (including the West- 
ern Pacific). Of the $64,000,000 issued, $55,000,000 went 
to the two roads for the line from Omaha to San Francisco. 
As the interest was paid on these bonds it was charged 
against the railroads, with the result that, when the loan 
matured about 1899, the debt was $136,000,000. As the 
government stood ready to take over the roads if the debt 
was not paid, the owners of the Union and Central Pacific 
Roads found the money to pay the principal and interest paid 
by the United States. The Kansas Pacific and Sioux City 
settled for about the principal. The government received 
$126,000,000, so that it was out of pocket only about $10,- 
000,000 and the interest on its interest payments. 



528 Transportation. [§ 227 

227. City Traction Systems. 

In cities the carrying of passengers has long been an 
important business. The earliest form of public travel was by 
stages or omnibuses, which ran on the regular streets and were 
subject to all the inconveniences of small capacity and bad 
roads. The Fifth Avenue stages in New York City are one of 
the few remnants of this system. About 1845 began the first 
city railroads, very small and crude affairs, with strap rails 
bolted to wooden stringers. Such lines appeared in all the 
considerable cities before the Civil War, and down to about 
1890 the horse-cars continued to be the only practical system. 
The horse-railroad system had about reached its limit : it 
occupied in the streets the length of both horses and cars, 
was much interrupted by storms, and could be carried over 
steep grades only by putting on extra horses. Various forms 
of motor had been tried, — steam, compressed air, cable, 
and electric storage battery, — but none of them fulfilled the 
conditions. 

The question was solved by the perfection of a method for 
taking power from a continuous wire ; and the effect was to 
revolutionize the whole business. Heavier and larger cars 
were at once introduced, some of them seating seventy-five 
persons, a half more than the ordinary railroad passenger car. 
It is easy to increase the number of cars in rush hours ; the 
space necessary for horses is saved ; speed is readily raised to 
any point consistent with the safety of ordinary travel, and 
often much above it. Almost everywhere the trolleys are fed 
by wires strung overhead, and fatal accidents are too frequent. 
In New York City most of the trolley wires are all placed in 
slots below the streets. 

The convenience of travel increased so much that the num- 
ber of passengers rose unexpectedly : the consolidated Bos- 
ton lines in 1880 carried 59,000,000 passengers j in 1900, 
201,000,000. The heavy cars required the complete rebuilding 
of the road-beds and the introduction of heavy rails, which. 



§ 227] City Traction. 529 

however, are in most places so carefully laid as not to damage 
wagon wheels. A service supplied with power from central 
depots and involving large capital tends toward consolidation ; 
and in nearly every city in the Union there is now only one 
large traction company, or perhaps two. 

The question of rapid transit in New York City is of special 
difficulty, because the city is situated on a long and narrow 
island, with a great rush of travel, — down town in the morn- 
ing and up town at the end of the day. The first solution was 
there found in elevated roads, of which there are four, stretch- 
ing the whole length of the island from north to south, besides 
five in Brooklyn. These elevated roads, built from 1873 to 
1890, under acts of the legislature, received the valuable privi- 
lege of building their lines in the public streets. Even the 
legislature, however, could not deprive the abutting property- 
owners of their rights, and they brought suit against the com- 
panies for damages. The companies fought off and delayed 
the suits, until it became evident that along most of the lines 
property was worth more after the building of the roads than 
before ; hence the actual damages paid were small. The ele- 
vated roads of New York now carry about 235,000,000 people 
annually, and have proved very profitable investments to their 
owners. 

The example of New York has been followed by only two 
other cities : Chicago and Boston both have elevated struc- 
tures, built by private companies. In Boston the elevated and 
surface roads are managed together, by a system of free trans- 
fers from one to the other. 

The traction companies in American cities are wealthy and 
powerful. The Philadelphia Traction Company has about 450 
miles of track within the limits of Philadelphia, employs 7,400 
men, and expends large sums in construction and mainten- 
ance. As the cities have grown and passengers have increased, 
the surface railroads have striven manfully against the three 
obvious methods of giving advantages to the public, (i) They 
have not reduced the fare, which throughout the Union is 

34 



53^ Transportation. [§ 228 

normally five cents, though in many foreign cities short-dis- 
tance passengers pay as low a fare as one cent. (2) They 
have not increased the accommodation so as to give everybody 
a seat. In Paris nobody is admitted to the interior of a car 
unless there is a seat for him. (3) They have not paid suffi- 
cient sums for their privileges. The profit of a traction com- 
pany really results from its right to build in the public highway : 
the New York elevated roads, for instance, have issued about 
$10,000,000 in bonds, based upon the value of their fran- 
chises, that is, of their privileges. 

For locations, for extension of lines, for increase of tracks, 
and so on, the traction companies are dependent upon the city 
governments for the time being ; and there have been some 
startUng cases of the buying of franchises from city councils. 
Where money is not used, there is a regular system of securing 
the support of state and city legislators by giving them the 
privilege of designating men for employment by the traction 
companies ; in some cities nearly every man on or about the 
street cars owes his place to the influence of a politician. 
This means an increased expense in running the road, and of 
course a company does not submit to such influence unless it 
sees something to gain through the favor of those who have 
votes. 

228. Country Electric Lines. 

Since about 1888 has developed a new system of country 
transportation, the electric trolley car, which runs in all 
weathers, can carry as many people as ten stages, reaches a 
speed of twenty miles an hour or more, and receives its 
power from a central station, which is kept up at a moderate 
expense. The limit of the old horse-cars radiating from cities 
was about an hour's travel, six miles : many electric lines 
habitually bring people into the cities from ten, fifteen, or 
twenty miles away ; and such lines are agents in redistributing 
city populations and making suburban life easy. 

This is only part of their service : throughout the United 
States, trolley lines are being pushed out into the open country. 



§ 228] Country Electric Lines. 531 

twenty, thirty, or forty miles ; adjacent cities are connected ; 
country towns are strung like pearls in a necklace ; and remote 
villages are brought into touch with the rest of the world. 
The country trolley lines have usually been local enterprises at 
first ; but, as they have proved profitable, syndicates of heavy 
capitalists have been formed to buy up the short lines, extend 
them into long stretches, and combine them into systems. 
The trolley lines in a radius of about fifty miles from Cleveland 
have nearly all been brought into one ownership. 

The prime advantage of the trolley lines is their cheapness 
of construction ; for most of them are built on the highways 
widened for the purpose if necessary ; and where they strike 
off" on their own rights of way, it is over cheap land easy to 
acquire. The trolleys need no station buildings, and concen- 
trate their car houses and power houses in narrow spaces. As 
they run on the surface, they need neither bridges over the 
highways nor gates or watchmen ; and the switching is done 
by the men on the car. The unit of service, the ordinary 
trolley car, is light in comparison with the locomotive and one 
car, which is the minimum of railroad service. Trolley lines 
create their own business : wherever they extend, people move 
in, houses are built, and the habit of travel is easily formed. 
Many of the lines are by their charters confined to conveying 
passengers ; but in some parts of the country they carry bag- 
gage, express, mail, and light freight. Here is the opportunity 
for developing the system : wherever they extend they ought 
to supersede long wagon hauls, and to develop an express sys- 
tem for small manufactures and for the products of the farm 
and market garden. 

The short trolley lines radiating from cities get a large 
amount of local travel which would otherwise go to the rail- 
roads, and for distances of twenty-five to fifty miles they are 
beginning to take away rail passengers. Should the consoli- 
dation continue so that long-route cars can be run, they will 
compete on distances of from a hundred to two hundred 
miles, thus cutting off" a profitable part of the railroad busi- 



532 Transportation. [§ 229 

ness. Some railroads are so far aware of this competition that 
they have bought up the trolley lines, not to close them, but 
to carry them on in harmony with the regular railroad ser- 
vice, which must always hold its own for through travel and 
for heavy freight. 

As yet the relation of the states to electric lines is little 
developed. A large part of the trolley mileage is on the sur- 
face of public streets and roads ; and, as these lines spring 
out of the previous local lines they usually need the consent of 
the local authorities for their location, and are subject also to 
local regulations as to fares, rate of speed, fenders, protection 
to passengers, and so on. Eventually the states will be 
obliged to enact systems of laws for the control of trolley 
systems, as they have done for railroads. 

229. City Ownership of Traction Lines. 

As a remedy for the present difficulties in transportation 
within the cities, municipal ownership has of late years often 
been suggested. In the earlier stages of transportation there 
seemed no necessity for such a measure : passengers were 
transported by anybody who could furnish the capital ; if 
street A were occupied by one company, a competing com- 
pany could have street B. The gradual consolidation of the 
companies, and the occupation of every important thorough- 
fare by rails, have long since put an end to the possibility of 
competition. The street railroads have the use of definite 
strips of the public streets, and are bound to furnish transpor- 
tation at the regular rate for all the people who want to be 
carried. Unless the state and city governments are vigilant, 
there will in time be no sufficient inducement to the owners 
of the systems to accommodate the public or to take their 
fair share of public burdens. 

So little was impending monopoly foreseen that there was at 
first little pressure for perpetual franchises : by the original 
charters, the car companies received franchises running from 
twenty-five to fifty years. Since the introduction of the elec- 



§229] City Ownership. 533 

trie cars, some of the cities — for example, Philadelphia and 
Pittsburg — have given perpetual franchises for all the avail- 
able routes within their limits, without exacting a dollar in 
payment. In Philadelphia immensely valuable franchises 
were given away, although a responsible man offered to pay 
$2,500,000 in cash for those privileges. 

The great political power of the traction companies, the 
importance of the service which they render, and the diffi- 
culty of getting adequate payment for the use of the public 
streets suggest public ownership as a remedy. That system 
has been tried in only one American city : the legislature of 
Michigan in 1899 Passed an act authorizing the city of Detroit 
to own and operate the street railroads, the traction company 
to be indemnified for its property ; this act was, however, held 
unconstitutional by the Michigan Supreme Court in July, 1899. 
The system of municipal ownership prevails in Toronto and 
in some other Canadian towns ; and many of the provincial 
cities of Great Britain, as Huddersfield, Lee, Glasgow, Shef- ' 
field, and Liverpool, have municipal tramways. 

Two American cities have provided at public expense for 
underground subways, which are to accommodate a part of 
the traction lines. The Boston subway, about three quarters 
of a mile long, was constructed in 1896-1898, at a cost of 
about $4,000,000, by a commission authorized by the state, 
and with a previous understanding that it should be leased to 
the West End Street Railway Company for a period of 
twenty years, at a rate which would pay interest on the cost 
and eventually extinguish the principal. It is now operated 
in connection with both the surface and the elevated lines 
through the heart of Boston. 

In 1900 the city of New York undertook a similar but vastly 
greater task, — the construction of an underground system, 
much of it hewn through solid rock, 25 miles from Brooklyn 
to the Bronx, passing under the East River and across Man- 
hattan. This great public work is to cost $38,000,000 ; it is 
to be leased for fifty years on terms similar to those of the 



534 Transportation. [§229 

Boston system, and is to be operated in cooperation with 
the elevated roads. 

If it is suitable that cities should own street railway systems 
underground, it is difficult to see why they may not own them 
on the surface or in the air. Hence, to many cities the idea 
has come that the way out of the trouble is for them to buy 
up the existing roads and build the new ones. The objections 
are obvious. Can city governments, which carry on their 
regular functions at large expehse and with confusion and 
corruption, — can they add so important a service as the 
street railways? Would a poHtical motorman or division 
superintendent give better service than the employee of a 
company whose interest it is to save wherever possible? 
Could city governments resist the pressure to build non-paying 
lines in thinly-settled districts, or to reduce fares below the 
actual operating expenses ? Can city officials be trusted with 
business functions, with the management of great industries? 
The answer to these questions is briefly that, so far as the 
personnel is concerned, it is now about as political as it would 
be under a city system. In some parts of the country mu- 
nicipal gas and water are thought to go beyond the province 
of municipal government ; yet other cities successfully main- 
tain them. The experience of the English and Scotch cities 
in municipal tramways is on too small a scale to serve as a 
basis for argument as to municipal ownership in America. 

The main arguments for public ownership are that the 
street railway is a part of the public street and of the system 
of public movement ; that it is impossible for one set of 
authorities to control the edges of the street and another to 
control the middle ; that public ownership is the only means 
by which the advantage of increased travel and mechanical 
improvements can be secured to the public. In 1902, on a 
special vote taken in the city of Chicago to ascertain the 
opinion of the people of that city on the acquirement of the 
whole system of surface traction by the city^ the vote was 
about four to one in favor of it. 



Part X. 
General Welfare. 



CHAPTER XXVIII. 

EDUCATION. 

230. References. 

Bibliography: Commissioner of Education, Reports, 1888-1889, IT> 
ch. XXXV ; 1900-1901, I, pp. ciii-cxii ; Brookings and Ringwalt, Briefs for 
Debate (1896), Nos. 53, 68; W. S. Monroe, Bibliography of Education 
(1897) ; A. B. Hart, Matiual (1908), §§ 97, 98; CD. Wright, Practical 
Sociology {Am. Citizen Series, 1900), § 100. 

History of Education: P. Monroe, Hist, of Education (1905); E. 
G. Dexter, Hist, of Education in U. S. (1904) ; G. H. Martin, Evolution 
of the Massachusetts Public School System (1894) ; G. G. Bush, Higher 
Education in Alassachusetts (1891) ; R. G. Boone, Education in the United 
States (1889) ; H. B. Adams, editor. Contributions to American Educa- 
tional Hist. (1887-1903, 35 Nos., U. S. Bureau of Education, Circulars 
of Information') . 

Education in General: C. W. Eliot, Educational Reform (1898); 
C. W. Eliot, Am. Contributions to Civilization (1897), Nos. 2, 8, 9; A. T. 
Hadley, Education of the Am. Citizen (1901); J. W. Jenks, Citizenship 
and the Schools (1906) ; H. Miinsterberg, Americans (1905), chs. xiv-xix; 
A. B. Hart, National Ideals (Am. Nation, XXVI, 1907), ch. xii; E. E. 
Brown, Making of Middle Schools (1903) ; P. H. Hanus, Educational 
Aims (1900); C. D. Wright, Practical Sociology (A?n. Citizen Series, 
1900), ch. xi; F. H. Giddings, Democracy and Empire (1900), ch. xiv ; 
A. B. Hart, Studies in American Education (1895) > J- Bryce, Am. Common- 
wealth (ed. 1901 ), II, chs. cv, ex, cxi ; W. T. Harris, in N. S. Shaler, U. S. 
(2 vols., 1S94), II, ch. vi. 

Current Discussion : U. S. Commissioner of Education, Annual 
Reports (1868-); Annual reports of state superintendents, city superin- 
tendents, and secretaries of state boards of education, city school boards, 

535 



536 



Education. [§231 



and school committees; National Educational Association, Proceedings 
(1858-) ; Committee of Ten, Report on Secondary School Studies (1893) ; 
Committee of Twelve, Report on Rural Schools (1897) ; Committee of 
Fifteen, Report on Elementary Education (1895) > Report of Committee on 
College Entrance Requirements (1899); School Review (1893- )> Edu- 
cational Review (1891- ) ; New England Assoc, of Colleges and Pre- 
paratory Schools, annual Addresses and Proceedings. 

231. History of American Education. 

The federal constitution has often been misconstrued as 
giving Congress authority to do anything which is for " the 
general welfare." The clause referred to gives Congress 
power to " lay and collect taxes, duties, imposts, and excises, 
to pay the debts and provide for the common defence and 
general welfare." The power to lay taxes for the general wel- 
fare does not give power to do other things for the general 
welfare ; and the clause is not an enlargement, but a limita- 
tion, even of the taxing powers. On the states and local 
governments falls the responsibility for the general welfare. 

No part of the functions of government is more important 
than to further the intellectual and moral uplifting of the 
people ; and, with the exception perhaps of the Dutch, the 
New England colonists were the first to realize that children 
are educated, not for themselves or their parents, but that 
they may serve the state. Some of the English schools in the 
sixteenth century were supported in part by parish or town 
taxation. Formal public education in the colonies began in 
1636, when the government of Massachusetts contributed to 
the founding of Harvard College, which is still a respectable 
institution. In 1647 the General Court of that colony passed 
an act requiring a town of fifty families to maintain a school, 
and a town of one hundred families to maintain a grammar 
(that is, a Latin) school. A similar act was passed by Con- 
necticut before 1650. In most communities these schools 
were not free, inasmuch as those who could afford it paid 
fees ; nor were they public, inasmuch as they were not open 
to girls. 



§231] History. 537 

The pre-Revolutionary colleges were Harvard (1636), 
William and Mary (1693), Yale (1701), Princeton (1746), 
Kings, now Columbia (1754), University of Pennsylvania 
(1759, reorganized 1779), Brown (1764), Rutgers (1766), 
and Dartmouth (1769), all of which were helped from the 
colonial treasuries. Just before the Revolution there was a 
movement for the establishment of endowed secondary 
schools : among them Phillips Andover, Phillips Exeter, and 
other New England academies ; preceded by the William 
Penn Charter School which was founded in 1689. Neverthe- 
less, down to the Revolution both schools and colleges were 
ill-housed and poorly equipped, with narrow curricula taught 
perfunctorily. The lower schools went little beyond reading, 
writing, and ciphering ; in the secondary schools appeared 
some classics ; in the colleges the studies were chiefly Greek, 
Latin, and mathematics, with a little book science and in some 
cases Hebrew. Previous to the Revolution, no such thing as 
a technical or professional school of any kind existed in the 
United States. 

After the constitution of 1787 new colleges were founded, 
among them several stafe institutions supported almost wholly 
by taxation, especially the universities of North Carolina and 
Virginia. Professional schools began to spring up, beginning 
with the medical schools of the University of Pennsylvania 
and Harvard, soon after followed by law schools and distinct 
theological schools. Academies arose in many parts of the 
country, and proved effective centres of education. In the 
first third of the nineteenth century appeared church schools 
and colleges. Yet nearly all the education of that time 
depended upon the personal character of the presidents or 
principals, and of the college and school teachers ; methods 
were still dry and lifeless ; text-books were poor ; and there 
was little in the way of libraries and apparatus. 

Meanwhile the common schools lagged behind. In 1838 
Horace Mann, first secretary of the Massachusetts State Board 
of Education, pointed out the three fundamental defects of 



538 



Education. [§ 231 



the common schools in the country, and to a large degree in 
the towns : poor teachers, poor buildings, and poor methods. 
Other New England states woke up to their imperfections ; 
and New York and Pennsylvania, in which up to this time 
there had been no general systems of common-school educa- 
tion, now began to found public schools. Ohio and the states 
farther west used immense government grants of land for school 
purposes ; but in all parts of the country the rural school 
developed very slowly down to the Civil War. 

In most of the large Northern cities, public high schools 
began to spring up about 1850, carrying education above the 
grammar schools, and furnishing for the cities what the acade- 
mies furnished for many country towns. Still all was chaotic ; 
in many states the country schools were held but a few months 
in the year; and even in the cities there was little school 
organization. 

After the Civil War came a new era in education. The city 
schools were organized into systems, with regular courses of 
study leading from the first year in the primary to the last 
year in the high school, — a period of eleven or twelve years 
of continuous schooling. Buildings were constructed with due 
reference to. light, heat, and ventilation. The high schools 
began to increase in number and in size. The state univer- 
sities already established began to grow, and in 1862 the states 
received special land grants from Congress for agricultural 
colleges ; in some instances these funds were applied to the 
preexisting state universities. The colleges throughout the 
country began to come into closer relations with academies 
and high schools, which became " feeders " to the higher 
institutions. Many of the older colleges became universities, 
by adding professional and technical schools. The churches, 
especially those made up of immigrants from other coun- 
tries, established not only the old type of colleges and 
boarding-schools, but also large day-schools in the cities. 

In 1865 Vassar College was opened, the first of several 
institutions to give a thorough college education to women 



§ 23i] History. • 539 

only. Co-education, which had long been usual in country 
schools and in some academies, and which was adopted as the 
fundamental principle in Oberlin College in 1841, was now 
acknowledged in nearly all the state universities. Normal 
schools for the training of teachers, strongly advocated by 
Horace Mann, spread through the country. Public techni- 
cal schools — the first one established in Pennsylvania in 
1854 — increased; and most of the great universities now 
include scientific schools. Professional schools in law, medi- 
cine, and theology have increased in number, in length of 
course, and in thoroughness ; and in 1874 Johns Hopkins Uni- 
versity inaugurated the first distinct graduate school for the 
training of experts and of college and secondary teachers. 

At present the provision for education in the United States 
is as follows: — (i) Individuals and corporations carry on 
schools and colleges at their own expense, from the fees of 
pupils, or by endowments, with little control from any public 
authority. 

(2) The federal government has a " Bureau of Education," 
with a commissioner whose public function it is to collect and 
disseminate information ; he issues a bulky and important 
annual report, and monographs ; he is also one of the principal 
educational leaders of the country, a frequent speaker at educa- 
tional meetings. The government maintains a system of city 
schools in Washington, many schools for the Indians, and the 
admirable military and naval academies ; and it keeps up a 
liaval observatory, a geological survey, the Smithsonian Institu- 
tion, and other scientific establishments which are really educa- 
tional. Many suggestions have been made that it ought to 
found a national university at Washington, a plan which would 
be carried out but for the existence of more than twenty large 
and well-managed endowed or state institutions. 

(3) Most of the states maintain some forms of university or 
agricultural college, or both ; and systems of normal schools. 
In addition, the state governments exercise some supervision 
over local schools, particularly in the country ; and in some 



540 Education. [§ 232 

cases, through invested funds or by direct appropriation, they 
add to the school revenues. 

(4) The locahties are responsible for instruction in common- 
school grades and high schools. They tax themselves to main- 
tain such facilities, and elect boards of education, which in turn 
choose superintendents and other school officers. The most 
serious defect of our educational system is that most states do 
not sufficiently insist that the localities shall provide schools of 
a high character, with properly- trained teacliers. 

232. Private and Church Schools. 

Few American communities have reached the German system 
of requiring that all children attend school ; and, of those that 
do have this requirement, Masssachusetts is almost the only state 
which really makes the provision effective by providing a system 
of truant officers to follow up delinquents. Not one has adopted 
the French principle that no child can attend a school, or take 
lessons of a private tutor, unless the school or tutor has received 
the license of the state to teach. It would be a reasonable use 
of the state power which licenses druggists, and in some states 
plumbers, if the teachers in all American schools, private as 
well as public, were compelled to satisfy public examiners that 
they were educated persons. 

A large part of our education is carried on by private institu- 
tions. In many small communities there are small "select 
schools " for children of neighboring families able to pay fees. 
Other schools are carried on as commercial enterprises : such 
are the business colleges, common throughout the Union ; 
boarding-schools, often of a military type ; private normal 
schools ; the college preparatory schools in cities ; and even a 
few colleges are run for profit. 

Next come a variety of endowed private schools, some of 
them intended especially for the sons of wealthy men who can 
afford considerable fees, others more democratic. Some such 
institutions draw boys or girls from all over the Union, and are 
therefore really national schools. Many of the endowed acade- 



§ 233] Private Schools. 541 

mies are denominational, in the sense that the religious services 
are those of some particular church, as the Episcopal, or the 
Baptist, or the Congregational. Another type of school is es- 
tablished by a church solely for its own members, and with the 
distinct purpose of perpetuating the religious beliefs of that 
church. Such are the Catholic parochial schools, estabhshed 
wherever they can be afforded ; and the similar schools of the 
German Lutherans in the Western and Northwestern states. 
All faithful and devout parents are expected by the ecclesias- 
tical authorities to send their children to these schools. 

In the year 1S89 the legislature of Wisconsin took notice of 
the fact that many such schools in that state were conducted in 
other languages than English ; accordingly the Bennett Law was 
passed, requiring all schools, pubUc and private, to give their 
instruction in English. The result was a political upheaval, and 
the next legislature hastily repealed the Bennett Law. The 
principle, however, was sound : for it is contrary to the interests 
of the community to educate children without a fundamental 
training in the language of this country ; or to foster the con- 
tinuance of islands of foreign-speaking population, since they 
tend to become separate communities, hard to reach on public 
questions. 

233. Public Schools. 

While for about seventy years it has been a fixed principle 
that the state is bound to furnish an education for every child 
who desires to avail himself of public instruction, only in the 
last forty years has this principle extended to secondary educa- 
tion in all the larger places ; and only in the last few years have 
public high schools developed with great rapidity in the South- 
ern states, which have hitherto been unprovided. 

In few states is there a systematic pubhc control even of the 
public school. The widespread principle is that each com- 
munity must keep up schools of a certain class, — the so-called 
"common" schools in country districts, primary and grammar 
schools in towns, high schools in cities ; but each town and city 



542 



Education. [§ 233 



has large freedom of instruction, and selects its own teachers. 
A few states go much farther : Massachusetts, for instance, pro- 
vides by law that every town must maintain a high school, or 
pay the tuition of its children in the high school of a neighbor- 
ing town • that every high school shall include a specified list 
of subjects in its curriculum ; and that the town must raise suffi- 
cient money to provide adequate instruction in all those 
subjects. 

Nearly every state exercises more or less supervision through 
a state superintendent of education, whose powers are usually 
those of investigation and admonition ; and through county 
superintendents with similar powers. In Massachusetts, every 
town must be in the district of a paid superintendent. In New 
York the state control is more centralized and effective than 
anywhere else. The Board of Regents of the State University 
is really a central educational board, presenting subjects for the 
common and high schools, and holding its own examinations of 
pupils. 

Most states require all teachers in public schools to hold cer- 
tificates gained in examinations, usually conducted by state or 
county superintendents ; but the examinations commonly test 
a low standard of learning. Some states have a text-book 
system, by which books are selected for a series of years by a 
board ; and in California text-books are prepared by state 
authority. 

The smallest unit of school administration is the school dis- 
trict, which in many states has its own board, raises its own 
taxes, and appoints its own teachers. A boasted advantage of 
the district school is that the younger children listen to the reci- 
tations of the older, and hence everybody knows something 
about everybody else's lesson. In fact, however, the district 
school is wasteful and inefficient : it is scrappy, for sometimes 
forty different classes have to recite within five hours ; the 
teachers are not trained in all their subjects or for all the ages 
which they teach ; and often they are themselves scantily edu- 
cated. In some parts of the country, neighboring districts com- 



§ 2^51 Public Schools. 543 

bine to build a graded sciiool, and at the public expense carry 
the distant children to and from school. This system saves 
much expense of care and maintenance, and makes possible, 
for a somewhat higher rate of taxation, a classification of the 
children which is otherwise possible only in towns. 

The graded schools of the small towns are well housed, but 
do not insist upon properly-trained teachers, and hence do less 
than they might with the money that they spend. In the elabo- 
rate school systems of cities with populations of from 50,000 
to 200,000, we look for the best results of the American public- 
school system. Such cities usually have vigorous superintend- 
ents, backed up by lively public interest ; and the number of 
children is great enough to allow complete grading. Many 
cities have public kindergartens, which take children of four to 
five years of age in hand and teach them simple beginnings. 
The next division is usually the primary, extending over three 
to six years, followed by about four years of the grammar 
school ; these two systems taken together are often called simply 
"the grades." Children are moved up from grade to grade 
commonly in the middle, as well as the end, of the school year ; 
but in some American schools it is not very hard for quick chil- 
dren to skip a grade and so get out of the iron machinery of 
promotion. In most school systems, the normal age for ending 
the grammar school is fourteen to fifteen. 

In order to utilize the plant, and to provide for those who 
cannot be accommodated in regular school sessions, night 
schools and night high schools have grown up ; and vacation 
schools are now frequent. 

At every age after about six years, the school children fall ofT 
in numbers : in a city where 10,000 children enter the school 
every year for the first time, about 6,600 go up to the gram- 
mar schools ; of these about 1,775 go to the high schools ; and 
not more than 350, or one in twenty-eight, graduate from the 
high schools. 

The high school is in many ways the most important part of 
the system : it completes the public-school training ; it offers 



544 Education. [§ 234 

an opportunity for the willing and the gifted to go farther ; it 
has laboratories and other opportunities of training outside of 
books ; it presents a variety of courses, either by permitting 
pupils to make some selection out of many subjects, or (of late 
years) by providing a system of parallel schools, as a classical 
high school, an English high school, a manual-training high 
school, and perhaps a distinct commercial high school. In 
range of studies, intelligence of method, and thoroughness of 
work, good high schools now go farther than good colleges went 
fifty years ago : except for the close personal associations of 
college life, high-school graduates of to-day are getting a better 
and more serviceable education than was furnished for any of 
their grandfathers. 

234. Endowed Universities and Technical Schools. 

English university education, since its foundation nearly a 
thousand years ago, has been the function of private chartered 
institutions such as Oxford and Cambridge. In America the 
state governments incorporate colleges, give them authority to 
confer degrees, aid them with tax exemptions and often with 
money gifts, and support many of them. By tradition, the 
organization of a university includes a college, or academic, 
department leading up to the degree of A.B. Upon or along- 
side the college department have grown up professional schools, 
offering the M.D. in medicine, LL.B. in law, B.D. in theology, 
and Ph.D. for graduate work, together with a B.S. in an under- 
graduate technical or scientific school ; in some cases there 
are also special schools of dentistry, finance, forestry, music, 
art, agriculture, veterinary medicine, and other subjects. The 
professional schools often exist separately, but the strongest 
ones are now parts of some university. Many whimsical 
degrees are conferred by poor colleges, as M.W., " Maid of 
Wax Works," and B.S.D., "Bachelor of Scientific Didactics." 

The administrative organization of such institudons shows 
many types. Under most of them college presidents hold life 
positions of dignity, are much in the public eye, and become 



§ 234] Technical Schools. 545 

great forces in public and social life, (i) The most common 
form is board government, in which trustees are the motive 
force, the president serving as an executive to carry out the 
directions of the board. (2) In faculty government, — the 
German method, — the actual teachers make appointments to 
vacancies ; it is infrequent in America except in medical 
schools. (3) A third type, now steadily gaining ground, 
is presidential government, in which the president initiates 
educational changes and makes appointments (usually with 
the confirmation of some board), and exercises strong in- 
fluence over the financial management. This responsibihty 
tends to keep the various parts of a university in harmonious 
relation, and makes possible a systematic plan of education. 

Technical education has been of much later growth than 
collegiate : only one of the large technical schools, the Rens- 
sellaer Polytechnic of Troy, was founded earlier than 1839. 
Although intended to prepare engineers, chemists, geologists, 
and other masters of applied science, some of these schools 
have liberal courses, including modern languages, history, and 
economics, and furnish good all-round training. 

The "Report of the Commissioner of Education" for 1899-- 
1900 enumerates about 460 private universities, colleges, and 
technical schools, with an enrolment of 47,000 men and 30,000 
women, a total of 77,000, — besides about 40,000 in public 
institutions. The number of degrees conferred in course was 
16,000; of honorary degrees, 700. These institutions, how- 
ever, are of every variety of size and resources: 22 so-called 
" colleges " reported less than ten students each, and about 
270 of them had less than a hundred each ; the largest institu- 
tion had more students than the hundred smallest taken to- 
gether. The Mountain Home College, for instance, had a 
faculty of one man and two women, while the Columbia 
teaching force was 350 men and no women ; New Windsor, 
Maryland, had a total income of $i,Soo, the University of 
Chicago $1,600,000; the library of Kansas City University 
had 500 volumes and was worth $500, the library of Harvard 

35 



54^ Education. [§ 235 

University had 550,000 volumes and 430,000 pamphlets; the 
productive funds of Greenville and Tusculum College were 
;^2,2o5, of Leland Stanford Junior University, over $18,000,000. 

In every state except California, institutions of learning have 
partial or complete exemption from taxation, on the well- 
grounded theory that they are performing a public service and 
are often relieving the state of part of the expense of public 
education. In Maine the state pays to the localities a sum 
intended to reimburse them for the responsibility of protecting 
college property. 

A special form of endowment is the creation of large funds, 
the income to be used, not for buildings, but for keeping up 
schools in poor communities or among depressed races. George 
Peabody, a London banker, born in Danvers, Massachusetts, 
gave ^3,500,000 as a fund for the education of negroes, and 
the income has been spent chiefly in keeping up schools in the 
South. The Slater fund of $1,000,000 has been used for the 
same purpose. Some of the missionary societies maintain 
schools and even colleges, especially among the negroes, poor 
whites, and western frontiersmen. In 190 1 Andrew Carnegie 
created a fund of $10,000,000, to be used by a board of 
trustees in furthering scientific investigation and research. 
Some of the great scientific and historical societies offer prizes 
for discoveries, or for good books, in their fields ; these funds, 
properly managed, are flexible, and accomplish results not 
easily reached by fixed institutions. 

235. State Universities. 

During the last quarter century, only two very large and 
wealthy universities have been founded by private benefactors, 
— the University of Chicago and Leland Stanford Junior 
University ; while a dozen important centres of national edu- 
cation have grown up under the care of the states. In the 
Western and Northwestern states, the principle of public edu- 
cation has advanced to the point that every young man and 



§ 235] State Universities. 547 

woman who can pay the necessary expense of living shall be 
furnished with university instruction free of tuition. 

The finances of state universities depend upon state grants, 
with some fees, for these institutions have little income from 
tuitions or endowments. The earliest state universities, in 
North Carolina and Virginia, have always depended upon 
state taxation. In some of the states the agricultural land 
grants of 1862 were turned over to private institutions : thus 
Cornell got the New York grant. In other instances separate 
agricultural colleges were established, as in North Carolina and 
the state of Washington. In other states the proceeds of the 
land grants were applied to the existing state universities : thus 
the large and prosperous universities of Ohio, Indiana, Illinois, 
Michigan, Wisconsin, Minnesota, Iowa, Missouri, Nebraska, 
and California got the means to expand and to build up profes- 
sional schools. Hardly any private institutions have such in- 
comes : in 1900 the University of Michigan received ;^3oo,ooo 
from the state ; the University of Nebraska, ^192,000 ; Ohio State 
University, ^167,000; the University of Wisconsin, $268,000. 
A few states have set apart permanent tax funds for the sup- 
port of the universities. 

The state universities all have certain general characteristics. 
They demand little or no tuition from the residents of the 
states ; yet many of them have so many outside attendants that 
comfortable sums are added to the incomes. Every one of the 
great state universities, in both undergraduate departments and 
professional schools, is open to women in the same manner 
and on the same terms as to men. The state universities pay 
great attention to the local industries : in the grazing states 
there are dairy schools ; in the mineral states, mining schools ; 
and in many states a large part of the high-school teachers are 
graduates of the state universities. In some states, notably 
Michigan, Wisconsin, Minnesota, Nebraska, and California, the 
universities are in organic relation with the lower and higher 
public schools, and have few or no rivals within the state limits. 



54^ Education. [§ 236 

With the state universities should be classed the separate 
state agricultural colleges and experiment stations. The United 
States government appropriates $25,000 a year for each agri- 
cultural college, and ;^ 15,000 for each experiment station (the 
purpose of which is to study plants, seeds, and methods of 
tillage suitable for the local conditions) , — a total federal ex- 
penditure of $1,875,000. The agricultural colleges are, how- 
ever, not successful in attracting men who expect to be farmers ; 
in most states they tend to become technical schools furnishing 
a general scientific education. 

Public education is one of the largest expense bills of Ameri- 
can governments. The United States expends for this purpose 
about $3,000,000 annually ; the states about $44,000,000 ; 
the localities about $184,000,000. This total of $231,000,000 
is about $15 per capita for the enrolled school children, or 
$3.50 per capita of the population. 

236. Religious and Moral Training of Youth. 

One of the functions of the Christian church has always been 
the education of the young, and in most European countries 
religious instruction is a part of the public-school curriculum. 
In Germany, for instance, the Catholic priest, the Protestant 
pastor, and the Jewish rabbi come in turn into the school 
buildings to instruct the children of their parishioners. Many 
of the private schools and colleges in the United States give 
special instruction in Bible study and morals. 

When, about 1840, the states for the first time faced the 
problem of a thorough public-school system, religious instruc- 
tion was not included, because there were too many denomi- 
nations in the community, and because it was thought contrary 
to the principle of religious freedom for the state to inculcate 
any religious doctrine. The Catholic church has always been 
especially strong against the teaching of any form of Protestant 
faith in the public schools ; and the Protestant denominations 
have been equally firm against permitting the Catholic clergy to 



§ 237] Public Libraries. 549 

have any official connection with the schools. The place has 
been to a large degree filled by the Sunday School, in which 
there were 11,000,000 scholars in igoi. Here each denomi- 
nation is free to teach the children who come to it voluntarily ; 
and in these schools children learn both the text and the moral 
lessons of Scripture. 

It is, nevertheless, very common throughout the United 
States to begin the day's school exercises with the reading of a 
few verses from the Bible and a few. words of prayer. This 
practice has given rise to many violent discussions. The Cath- 
olic clergy usually take the ground that the reading of the 
Protestant version of the Scriptures without comment is practi- 
cally the teaching of Protestantism ; and in some cities the 
school boards have forbidden this use of the Bible. The pro- 
hibition does not make the schools more acceptable to either 
the Catholics or the Lutherans. 

The withdrawal of hundreds of thousands of children into 
parochial schools is unfortunate because the public school is 
the greatest democratic influence in our country. It planes 
down those differences of race and language which tend to 
divide Americans ; for cliildren are susceptible to ridicule and 
try to learn the language and acquire the habits of native chil- 
dren. It also makes the different social strata acquainted with 
each other's needs and powers. 

237. Public Libraries and Museums. 

Public education does not stop with schools and colleges ; 
one of the most encouraging things in America is the devel- 
opment of libraries. Nearly every European government has 
established a great national library, such as the British Museum. 
For the new Library of Congress, the United States has pro- 
vided a superb building in Washington, and spends about 
$600,000 a year for increase, cataloguing, maintenance, and ad- 
ministration. Most of the states have libraries in their capitol 
buildings for the use of legislators and other public servants ; 
and a few of them are serviceable to schools. 



550 Education. [§ 237 

The last forty years have seen a great development of civic 
libraries, not only in the large cities, but in the smaller towns 
and even in villages and country places. In many instances 
the buildings have been the gifts of pubhc-spirited individuals ; 
but the books are usually bought, and the libraries adminis- 
tered, from public taxation. The commissioner of education 
enumerates 5,400 public, society, and school libraries, of which 
4,000 have more than 1,000 volumes each. In the state of 
Massachusetts every city, and every country town except 
seven, has a free library. The city of Boston has spent about 
$2,500,000 on hbrary buildings, and the city of New York is 
about to spend ^5,000,000 for a similar purpose. Cincinnati, 
Providence, Buffalo, Chicago, Minneapolis, and many other 
places have well-appointed buildings and increasing libraries. 
The annual drawings of books in the San Francisco Public 
Library are over 700,000. 

The effect of the free libraries is not only to keep up reading 
habits, but also to furnish a means of extending the work of 
high schools. Many libraries publish annotated bibliographies 
and finding-lists, intended to make easy the discovery of really 
good books. In the large cities, branch libraries are estab- 
lished ; and in some of the states, particularly Wisconsin and 
New York, public travelling libraries are sent from one country 
town to another, furnishing a practical means of education. 

The main difficulty with the library system is that too much 
money commonly goes into buildings, while the book-buying 
funds are almost always too small. A necessary part of library 
expense is cataloguing ; and the Library of Congress now offers 
to send printed transcripts of its own library cards wherever 
desired, in order to save this duplication of energy. 

Several of the large cities possess museums of art, most of 
them founded by private gifts and carried on for the public 
benefit by private trustees. In a few cases, however, — as the 
Field Columbian Museum in Chicago, — the city is the owner 
and maintains the plant ; and this system is hkely to extend. 



§238] Problems of Education. 551 

The United States keeps up several museums in Washington. 
Several cities, notably New York and Chicago, keep collections 
of wild animals for the instruction and entertainment of the 
people. In France and Germany, municipalities build and 
subsidize theatres as a part of public instruction. No Ameri- 
can city has ever undertaken this task, but free band-concerts 
are common. 

Free lecture courses have been established with great success 
in New York City, and have proved a means of educating 
those adults and children who have not the opportunity to 
go to school. Night schools taught as a part of the public 
schools have also helped to educate a busy class. Training 
in decorative art is likely to be taken up as a branch of 
commercial education. 

238. Problems of Education. 

American education is still in a formative stage, and the 
public has happily become aware that our schools are not per- 
fect, (i) The main defect is a clumsy system of school 
administration, based on the mistaken idea that any intelligent 
person can decide intricate questions of education. In many 
small communities the schools progress because the intelligent 
men and women of the place put their minds upon the subject ; 
but as cities grow larger it becomes more and iTiore difficult to 
carry on the schools simply by the force of public interest. 
The school boards are almost everywhere too large, too change- 
able, and too much addicted to the pernicious method of 
executive sub-committees. The building and the care of 
schoolhouses are often put into the hands of still another city 
authorityj so that janitors of schoolhouses sometimes snap their 
fingers at teachers, superintendents, and school boards. 

(2) School boards go too far into technical details. The 
particulars of school organization have to be worked out by 
actual teachers and educational administrators, just as the 
minutiae of railroad freight service must be settled by actual 



552 Education. [§ 238 

railroad men. From personal experience on a city school board, 
the writer concludes that such a board ought to confine itself 
to general questions, such as the introduction of new branches 
of study, the creation of new types of schools, the enlarge- 
ment of public kindergartens and manual-training schools, the 
establishment of methods for ascertaining the fitness of teachers. 
To experts should be committed such details as the arrange- 
ment of courses, studies, the building of schoolhouses, school 
furniture, text-books, and all the other paraphernalia of schools. 
(3) The next necessity of the schools is trained teachers, 
especially in the country schools. The American district-school 
system has given opportunity for earning money to thousands 
of worthy young men and women who were on their way to 
other pursuits ; but this changing and rather haphazard teach- 
ing has often been at the expense of the pupils. In every state 
it ought to be a principle that no person shall be appointed to 
a high-school position who has not a college education, or the 
equivalent ; and that no person shall be appointed to the 
grades who has not had a normal training, or the equivalent. 
With this presumption of fitness, teachers ought to be ap- 
pointed by superintendents or supervisors (the Cleveland system 
of appointment without confirmation by the board works well) 
for a time on probation ; and then, if their work is satisfactory, 
they ought to have appointments during good behavior ; there 
should then be an opportunity of promotion to the higher 
grades for superior work, and a slow annual increase of salary 
up to a maximum. Thus protected from removal for political 
reasons, and conscious of an adequate training, the good teacher 
has every incentive to do his best. As in other branches of the 
civil service, however, a fixed tenure of office often leads to 
indifference ; and the best teacher will grow old : hence there 
ought to be a system of retiring allowances, so that a faithful 
teacher who has passed the point of efficiency may neither be 
turned out to starve nor retained when a fresher and more 
vigorous teacher might come in. 



§238] Problems of Education. 553 

In the American schools a large proportion of the teachers 
are women, whereas in Germany and England the greater num- 
ber are men. In many ways women make the better teachers, 
because they are patient, conscientious, and have a high feeling 
of responsibility. In many cities women are appointed to the 
headships of schools on the same salaries as those allowed to 
men for similar services. Women, however, are seldom made 
principals of high schools, and are heads of only four of the 
thirteen large separate women's colleges. 

(4) The relation between the various strata of schools has 
now become very important. The grades commonly lead 
straight up to the high schools ; but outside the few states 
which have an articulated system, — such as Wisconsin and 
California, — there is a break between the secondary schools 
and the colleges. The large colleges are each fed by more 
than a hundred schools, and the same school is sometimes 
preparing young people for a dozen different colleges. Two 
different attempts are now making to get rid of this diffi- 
culty. The first is by the widely-used certificate system, under 
which the college examines the method of instruction in the 
school ; and, if satisfied, admits graduates to the college on pro- 
bation without examination. The other method is to bring the 
colleges to agree on a common basis of entrance requirements, 
so that the examination papers of a group of colleges shall all 
be the same and shall be administered by a common board. 

(5) Another necessity of education is a common under- 
standing among teachers of every grade and specialty. This 
important purpose is reached by associations of teachers 
grouped geographically, or grouped by interest in a common 
subject. Most influential is the National Educational Associa- 
tion, which has about 10,000 members, and meets in an annual 
convention lasting several days. From this Association have 
proceeded several important investigations into the conditions 
and needs of American education : it forms a kind of clearing- 
house for the educators of the country. 



554 Education. [§ 238 

Upon the whole, the tendency of American schools of every 
grade is toward constant improvement, especially in the selec- 
tion and training of teachers. In few cities now can teachers 
find employment who have not had either normal courses or 
experience in other schools ; and in general they are a con- 
scientious, hard-working, and underpaid body of public 
servants. 



CHAPTER XXIX. 

RELIGION AND PUBLIC MORALS. 

239. References. 

Bibliography: A. B. Hart, Mafiual (1908), §§ 97, 98 ; E. McClain, 
Constitutional Law (1905), § 206. 

Religious Liberty : C. W. Eliot, Am. Contributions to Civilization 
(1897), Nos. I, 2, 15; J. Bryce, Am. Commonwealth (ed. 1901), II, chs. 
cvi, cvii; W. E. H. Lecky, Detnocracy and Liberty (1896), I, 540-557 ; 
E. McClain, Constitutional Law (1905), §§207-210; II. Miinsterberg, 
Americans (1905), ch. xx; E. Freund, Police Po7ver {igo4), ch. xxii ; 
C. D. Wright, Practical Sociology {Am. Citizett Series, 1900), §§ 38, 39; 
P. Schaff, Church and State (Am. Hist. Assoc, Papers, II, 391-543, 
1888); J. H. Crocker, Problems in American Society (1889), No. 6; 
T. M. Cooley, Constitutional Limitations (6th ed., 1890), ch. xiii ; G. J. 
Bayles, Am. Civil Church Law {Pol. Sci. Q2mr.,XlV, 511-520, 1899); 
monographs in/ohns Hopkitts University Studies, X, Nos. 1-6, 8-9 (1892); 
XI, Nos. 5-6 (1893) ; XIL No, 4 (1894) ; XVIII, Nos. 10-12 (1900). 

Religious Organization : A. B. Hart, National Ideals {Am. Na- 
tion, XXVI, 1907), ch. xi ; The publications of the various religious 
bodies ; statistics in the year-books of the denominations, and also in 
Eleventh Census, Report on Churches (1890) ; histories of the various 
denominations. 

Health and Morals : A. G. Warner, Am. Charities (1894) ; W. H. 
Allen, National Board of Health (Am. Acad. Pol. Sci., Annals, XV, 51- 
68, 1900) ; National Conference of Associated Charities and Corrections, 
Proceediiigs (annual volume) ; J. A. Riis, Childreit of the Poor (1892); 
S. E. Sparling, State Boards of Control (Am. Acad. Pol. Sci., Annals, 
XVII, 74-91, 1901) ; E. Freund, Police Power (1904), ch. v.; C. D. 
Wright, Practical Sociology (1900), §§ 71, 80, 121. 

240. History of American Churches. 

At the time of colonization, the three rehgious forces in Eng- 
land were the Anglican Episcopal church, the Roman Catholic 
church, and various bodies of separatists and non-conformists. 

555 



^^6 Religion and Public Morals. [§ 240 

All these elements were represented in the colonies : Virginia 
and the Carolinas estabhshed the Church of England ; in Mary- 
land, Catholics were tolerated from the first ; the settlers at 
Plymouth were outright separatists ; and the Massachusetts 
people, at first Puritans in the Church of England, speedily 
set up separatist churches, called Congregational. Another 
separatist element was the Presbyterian (substantially the same 
as the Dutch Calvinist), early introduced into the Middle and 
Southern colonies. In New Jersey, Pennsylvania, and many 
other colonies settled the Quakers, radical separatists ; and in 
Rhode Island, the then very unpopular Anabaptists, commonly 
known as Baptists. In Pennsylvania and elsewhere settled 
German Protestants, especially Moravians ; and there were a 
few Jewish synagogues in the colonies. In the eighteenth cen- 
tury the Methodist church arose as another separatist body, 
and under the preaching of Whitefield and Wesley it gained 
ground in America. 

Of these churches, the Episcopal was supported by public 
taxation in Virginia and elsewhere, as was the Congregational 
in Massachusetts and Connecticut. At the time of the Revolu- 
tion the Southern church establishments were broken up by 
state constitutions, and fifty years later they ceased in the New 
England states. In 1789 the first Catholic bishop was desig- 
nated, and in 1784 the first Episcopal bishop. About 1788 the 
Methodists and Baptists formed national organizations ; and 
in 1789 the Presbyterians organized a national " General 
Assembly." 

From these parent denominations have sprung many lateral 
churches. Two were split from top to bottom : the Methodist 
church divided on slavery in 1844, and has never reunited; 
the Presbyterian church separated into Old School and New 
School in 1837 on doctrinal grounds, and both Old School and 
New School spHt when secession came about in 1861, making 
for a time four national Presbyterian churches, which have 
since reunited. On the other hand, many new elements 



§ 24i] Government and Churches. ^^y 

have appeared, such as the Greek CathoHcs and the Christian 
Scientists. 

The result is that the census of 1S90 enumerates seventy-five 
denominations, grouped, in general, in many cases national, or- 
ganizations. At present the tendency is for the great churches 
to keep up friendly relations with each other, while holding to 
their separate organizations. Each denomination tries to main- 
tain schools, colleges, newspapers, and publishing houses of its 
own, and also to sustain separate home and foreign missions. 
The only important church in America which is an organized 
part of a mundane religious organization is the Catholic, the 
higher clergy of which are appointed from Rome and participate 
in the ecumenical council. 

241. Government and Churches. 

In the eyes of the federal government and of nearly all the 
state, territorial, and local governments, the churches are simply 
voluntary associations, on the same footing as social clubs. By 
the First Amendment to the constitution, the United States is 
prohibited from making any " law respecting an establishment 
of rehgion or prohibiting the free exercise thereof;" which 
means that the federal government cannot appropriate money 
for the support of any church, or compel any person to worship 
in any form. A later movement to secure a constitutional 
amendment recognizing the existence of God has died out, 
perhaps because people think that God is not dependent upon 
a constitutional amendment for His existence. 

The state governments are under no restriction against the 
support of religion ; in fact, the constitutions of New Hampshire 
and Massachusetts for many years expressly required the legis- 
latures to pass laws compelling the towns to maintain Protestant 
teachers of piety, religion, and morality ; and the legislature of 
Georgia down to 183 1 made repeated grants of land to Baptist. 
Methodist, and Presbyterian churches. Most state constitutions, 
however, especially of the later period, absolutely prohibit the 



^^S Religion and Public Morals. [§ 241 

support of state churches. Several states refuse to accept the 
testimony of atheists, and some of them have made a belief in 
God a nominal condition for the suffrage or for holding public 
ofifice. 

The local governments are under the restrictions of the state 
constitutions ; but in some cities large appropriations are made 
to denominational charitable institutions, particularly to those of 
the Catholic church, on the theory that the money thus given 
saves the necessity of a like expenditure by pubhc officials. 

A widely-prevailing method of assistance to religious bodies 
is to relieve them from taxation upon their property. In many 
states this is a constitutional relief, and extends to all the 
property of ecclesiastical corporations, including convents, 
schools, and asylums, as vi'ell as to church buildings. For in- 
stance, Trinity Church, Episcopal, in New York City, is the 
owner of real estate worth millions of dollars, the rentals of which 
are applied to charitable purposes free of tax. In a few states 
— New Hampshire, for example — church property above a 
certain value is taxable, so as to discourage the accumulation of 
large holdings of real estate in dead-hand. The far-reaching 
effect of tax exemption is seen when we consider that in 1890 
the Methodist-Episcopal church alone had $114,000,000 worth 
of real estate, the Episcopal church ^83,000,000, and the 
religious bodies of the United States taken together about 
$700,000,000. 

Wherever the United States has acquired territory, it has 
allowed the preexisting churches to retain their property, but no 
longer to receive support out of the treasury. The question was 
not serious in Louisiana or Florida ; but it has been perplexing 
in the Philippines, where religious worship has for centuries 
been sustained by taxation, especially since the tide to many of 
the churches is vested in friars unpopular with the people. In 
the territory of Utah, from 1850 to 1887, trouble arose be- 
cause the local territorial government created a religious corpo- 
ration which held for one of its religious tenets the practice of 



§ 242] Religious Denominations. 559 

polygamy. In 1887 Congress passed a statute dissolving the 
Church of Jesus Christ of Latter Day Saints, distributing its 
property for pubUc education, and making the practice of 
polygamy a crime ; and, when the state of Utah was admitted 
in 1896, it was obliged to insert in its constitution an express 
prohibition of polygamy. 

Cases often arise in which the national or state courts must 
take cognizance of religious doctrine. If a dispute comes up 
within a religious body, and two parties claim each to be the 
orthodox and legal church, the courts decide, not which party 
has the proper religious belief, but which under the rules of its 
own church is entitled to control the property. The split in the 
Congregational churches of New England about 1810 caused 
many such suits between Unitarian and Orthodox congregations. 

242. Religious Denominations. 

An interesting field of inquiry is the relative strength of the 
various denominations ; but a comparison is hard to make, 
because the same terms do not mean the same thing every- 
where. Thus, among the Cathohcs all persons, young and old, 
above about fourteen years of age are counted church mem- 
bers ; in the Methodist church some children are admitted to 
membership ; the Unitarian church practically admits only 
adults. According to the latest available statistics, those of 
1902, the Cathohc church has about 9,100,000 members, most 
of whom are Irish, German, French, or Slav by birth or extrac- 
tion. The seventeen kinds of Methodists include about 6,000,- 
000 communicants. There are about 5,000,000 Baptists, 
distributed in thirteen sects, including the Regular, " Six- 
Principle," Seventh-Day, Freewill, Original Freewill, General, 
Separated, United Church of Christ, Primitive, and "Old 
Two-Seed-in-the-Spirit-Predestinarian " Baptists. Ten kinds 
of Presbyterians number 2,000,000, including three Reformed 
Churches and six Reformed Presbyterian. Nineteen bodies of 
Lutherans count 1,600,000; Disciples of Christ, 1,100,000; 



560 Religion and Public Morals. [§ 242 

Episcopalians, 700,000 ; Congregationalists, 600,000 ; Jews, 
1,000,000; Christian Scientists, estimated at 1,000,000. 

Among the smaller denominations or fractions of larger de- 
nominations are the United Zion's Children (River Brethren), 
of whom there are about 500 ; four different kinds of Plymouth 
Brethren ; the Christadelphians, with sixty-three small churches ; 
the Church of God (Winebrennerian) ; the Church Triumphant 
(Schweinfurth) and the Church Triumphant (Koreschan 
Ecclesia) ; the x^donai Shomo, a New England church of only 
20 members in all; the Dunkards (four kinds, with over 100,- 
000 members) ; four varieties of Friends or Quakers (the 
Orthodox, Hicksite, Wilburite, and Primitive) ; four churches 
of Friends of the Temple ; twelve varieties of Mennonites, 
including the Amish, Old Amish, Defenceless, and Brethren 
in Christ ; the Schwenkfeldians ; the Salvation Army, with 
40,000 adherents; and '-The Holy Ghost and Us." 

Arranged in the order of numbers, by far the most powerful 
of all the religious bodies is the Methodist church and its 
various ramifications, with 41,000 ministers, 55,000 church 
buildings, and from 12,000,000 to 15,000,000 adherents; more 
than two-thirds of all the Methodist sects are included in 
the two Northern and Soulhern regular Methodist-Episcopal 
churches. Next come the Baptists, with 36,000 ministers, 
50,000 churches, and 10,000,000 to 12,000,000 adherents. 
The third great group is the Catholic, with 12,000 clergy, 
12,000 churches, and 9,000,000 to 10,000,000 adherents. 
Next are the Presbyterians, with 14,000 ministers, 17,000 
churches, and 4,000,000 to 5,000,000 adherents; next the 
Lutherans, with 3,000,000 to 4,000,000 adherents ; next, and 
about equal in numbers, are the Disciples, Episcopalians, and 
Jews ; and next to them the Congregationalists, with 6,000 
ministers, 6,000 churches, and 1,500,000 adherents; next, 
probably, the Christian Scientists. 

The organization of the churches differs widely. The Cath- 
olic church has no national assemblies of either the clergy or 



§243] Public Morals. 561 

the laity, but a highly-centralized hierarchy leading up to the 
ultimate spiritual authority of the pope as the vice-regent of 
God and the head of the whole Catholic church. The Epis- 
copal church has in each state a bishop or bishops, and in each 
diocese a diocesan convention of bishops and lay representa- 
tives ; the final authority is the national triennial convention ; 
within each state the bishops are chosen by the diocesan 
convention, and confirmed by the body of bishops. The 
Presbyterian church has an elaborate system of conferences 
and state synods, and a " General Assembly," which has the 
power to lay down a basis of doctrine for every church and 
minister. In the Methodist church there are bishops, con- 
ferences, and a general conference which elects bishops and is 
the highest authority in the church. The Congregational and 
.Baptist churches have systems of local government, each church 
caUing its own ministers and laying down its doctrine ; but 
there is also a system of ^general councils for conference and 
the care of common affairs. The coming in of emigrants from 
Eastern Europe has introduced many congregations of the 
Greek Catholic church, which are subject to the metropolitan 
(prelate) of Greece, of t^^onstantinople, or of Russia. 

In a few cases, several denominations use the same church ; 
but commonly each wishes a separate building, and it is almost 
impossible to keep up union churches. Hence in many small 
villages, two, three, or half a dozen little churches may be 
found, each with a little congregation and a poorly-paid 
minister. 

243. Public Morals. 

The question of public morals was simple enough so long as 
church and state were identical : what the church forbade was 
commonly punishable by the civil authorities, or by penalties 
of excommunication, which were even worse. In colonial days, 
governments habitually followed up the good people with all 
sorts of minute regulations : the early New England statutes 
refer for authority to the books of Moses ; the cut of garments, 

36 



562 Religion and Public Morals. [§ 243 

the character of entertainments, were subjects of petty enact- 
ment ; failure to go to church was a misdemeanor punishable 
by the county court. 

Notwithstanding the disestablishment of the churches between 
1775 and 1835, the state governments continued to pass laws 
for the punishment of some acts contrary to ordinary religious 
belief: for instance, many states still have obsolete statutes 
against profane swearing and concerning the observance of the 
Sabbath. Most states protect religious services from disturb- 
ances caused by music or other loud sounds ; and the closing 
of liquor saloons on Sunday is effectual in many New England 
communities, and is attempted in other populous states. In 
most states, places of business are expected to be closed on 
Sunday, though even in the strictest ones exception is made of 
drug stores, hotels, public restaurants, and of news-stands , 
during a part of the day. Sunday amusements are nearly 
everywhere prohibited ; but in some cities, in defiance of the 
law, theatres are open on that day and athletic games are 
carried on. 

The protection of pubhc morals also extends to the prohibi- 
tion of gambhng of every kind, including lotteries. Playing for 
money was the habitual amusement of polite society a century 
ago, and it has always been common upon the frontiers and in 
great cities. It is practically impossible for the law to reach 
people who agree to gamble in private houses ; but the prohi- 
bition can be made effective against all places of public resort, 
and the business of gambling cannot flourish unless there is 
tolerably free access for the public. Formerly the great summer 
resorts were infested with gambhng, but from most of them it 
has been driven out. It flourishes, however, in the cities, where 
the gamblers somehow manage to keep themselves from arrest. 

In colonial times, the lottery was a frequent and respectable 
means of raising money. It was used even for building churches 
and college buildings ; and George Washington was a regular 
purchaser of lottery tickets. Such lotteries, conducted in the 



§ 243] Public Morals. 563 

open, were as fair a form of gambling as could be devised ; but 
of course, in order to leave anything for the promoters, the 
losses must have been much more than the winnings. The 
spirit of unrest and speculation resulting from lotteries was so 
great, and the tendency against saving so strong, that lotteries 
of every kind have been forbidden by every state in the Union, 
and by Congress for the exclusive jurisdiction of the United 
States. The people of Louisiana, in 1892, refused a bribe of 
$1,250,000 a year rather than allow the system to go on. The 
United States renders great service through its postal laws ; for 
it refuses to transmit lottery mail even from foreign countries, 
and its agents make every effort to discover lotteries which are 
carrying on business surreptitiously. 

The keeping of houses of prostitution is everywhere strictly 
forbidden, and yet they exist in every considerable community. 
Why is it so difficult to stamp out gambling-houses and other 
illegal places ? One reason is the difficulty of getting evidence, 
since those who frequent such places are the last to wish a 
prosecution. Another is the rift which exists between the 
upper and lower classes of society, so that one section of a city 
knows little and cares less about what goes on in another 
section. Another trouble in some unhappy cities is the ineffi- 
ciency of the poHce force, which for various reasons fails to see 
or to remedy conditions .with which it is perfectly familiar. 



CHAPTER XXX. 
PUBLIC ORDER. 
244. References. 

Bibliography: A. B. Hart, Manual (1908), §§ 123, 124, 138, 228, 229, 
299; CD.Wxighi, Practical Sociology {Am. Citizen Series, 1900), §§ 186, 
196, 203, 213; Brookings and Kiwgvi^M, Briefs for Debate (1896), Nos. 
66, 67, 75 ; R. C. Ringwalt, Briefs on Public Questions (1906), No. 25. 

Crime and Punishment: Y.\i.^va&i>, Punishment and Reformation 
(1895) ; T. Roosevelt, American Ideals (1897), No. 8; E. McClain, Con- 
stitutional Law ( 1905), §§ 227-262 ; A. Train, Prisoner at the Bar (1906). 

Liquor Traffic : W. E. H. Lecky, Democracy and Liberty (1896), II, 
134-168 ; J. H. Crooker, Problems in American Society (1889), No. 3 ; 
E. Freund, Police Power (1904), ch. viii; C. D. Wright, Practical Soci- 
ology (1900), ch. xxiii; S. N. Patten, Economic Basis of Prohibition 
(Am. Acad. Pol. ^z\., Annals, II, 59-68, 1891) ; F. H. Wines and J. 
Koren, Liquor Problem in its Legislative Aspects (2d ed., 1898) ; Commis- 
sioner of Labor, Fifth Special Report, 1893 (Gothenburg system), Twelfth 
Annual Report, 1897 (economic aspects) ; E. L. Fanshawe, Liquor Legis- 
lation (1893) ; J. Koren, Economic Aspects of the Liquor Problem (1899); 
R. Calkins, Substitutes for the Saloon (1901). 

Riots and Insurrections : F. J. Stimson, Handbook to Labor Law 
(1896), chs. viii, ix; J. E. Cutler, Lynch-Law (1905) ; E. Freund, Police 
Power (1904), chs. vi, xiv ; D. R. Dewey, National Problems [Am. Nation, 
XXIV, 1907), ch. xviii; F. J. Goodnow, Administrative Law, (1905), 418- 
440; J. I. C. Hare, Constitutional Law (1S89), I, Lect. xlii ; C. N. Gregory, 
Government by Injunction [Harvard Law Rev., XI, 487-511, 1898); 
W. D. Lewis, Debs' Case {Am. Law Register, n. s. XXXIII, 879-883, 
1894); W. H. Dunbar, Government by Injunction (Am. Econ. Assoc, 
Economic Studies, III, No. i, 1898) ; W. M. Bateman, Injunctions against 
Labor Unions [Central Law Jotirnal, XXXIX, 265, 266, 1894); C. C. 
Allen, Injunctions and Organized Labor {Am. Law Review, XXVIII, 828- 
859, 1894); American Bar Association, Report, 1894, pp. 151-326. — 
Sources : Federal Aid in Do77iestic Distm-bances (Senate Documents, 57 
Cong., 2 sess., No. 209, 1903) ; Industrial Commission, Reports (19 vols., 
1900-1902), IV, Testimony, 7-14, 145-147; Strike Commission, Report on 
the Chicago Strike {\Z<)i,). — Cases: Central Law Journal, XLII, 74-78 



§ 245] Crime and Punishment. 565 

(1896); Lawyers' Reports Annotated, XXVIII, 464-476 (1895); American 
Law Review, XXVIII, 269-272 ; XXIX, 138-141, 756-759 (Debs) ; XXXI, 
761-764 (1894-1897). 

245. Crime and Punishment. 

Just as the proper working of national, state, or local govern- 
ment depends upon the faithfulness of the persons who hold 
office, so the carrying out of the functions of government which 
directly affect individuals depends upon the obedience and 
good order of the citizens. When the laws are broken, what is 
the remedy? The most obvious is the prosecution, conviction, 
and punishment of the wrong-doer. In the United States the 
three forms of legal punishment are fine, imprisonment, and 
punishment of the body, (i) Fines are never large, a few 
thousand dollars at the most ; they are commonly appUed to 
delinquent officers of corporations, or in small sums to petty 
offenders. 

(2) The most common punishment for the conviction of 
crime is imprisonment ; but the humanitarian spirit of to-day 
has made the prisons very different from what they were 
seventy-five years ago — dirty, unwholesome, fever-stricken 
dens, infested with vermin, a punishment even to enter them. 
The modern theory of prison discipline is not only to put a 
penalty on wrong-doing and to keep the wrong-doer out of the 
way of mischief, but also to give him opportunity for reflection 
and reformation. Hence convicts are often taught trades, and 
employed in useful labor ; if they behave well in prison and 
give no trouble to the officers, their sentences are shortened 
by about one fourth ; they have proper food, and in most 
cases dry and healthful cells. Even then, to a thinking man 
it is a terrible punishment to be secluded from his friends, cut 
off" from movement, set apart among felons, and deprived of 
years of fruition. 

(3) Corporal penalties have not entirely passed out of Ameri- 
can jurisprudence. Whipping is a legal form of punishment in 
some reformatories and prisons in Delaware, inflicted chiefly 



566 



Public Order. [§ 246 



for petty crimes ; and the worst Southern prison systems are 
very like the badly-managed plantations in slavery time. The 
death penalty has been abolished in five states of the Union, 
but is inflicted in all the others, and also under United States 
law. In some states an electric shock is substituted for the 
old-time hanging. Notwithstanding a strong movement to do 
away with the death penalty altogether, it is retained in many 
of the old communities from the belief that it is a restraint on 
murder ; yet many juries acquit prisoners of murder because 
they do not like to be connected with putting fellow-men to 
death. On the other hand, in states which passively permit 
lynching, the abohtion of the death penalty would give an ex- 
cuse, now lacking, for the shocking torture and barbarism of 
unlawful executions by excited men. 

246. Charities and Corrections. 

Upon the various forms of American government falls the 
responsibility of providing for the weaker members of society. 
In colonial times, it was practically recognized that the com- 
munity was bound to keep all its citizens from starvation, and 
that the local governments were to provide for their own poor. 
The growth of civilization, almost unrestricted immigration, the 
rise of great cities, have multiplied the poor ; and at the same 
time a growing humanitarian spirit has added to the sense of 
public responsibility. Throughout the United States, therefore, 
almost every class of dependent and helpless persons is looked 
after by the state. 

First come the poor, who are cared for in one or all of three 
different ways: (i) in-door relief, which means a distribution 
of supplies, and sometimes of money, at the houses of the poor ; 
(2) out-door relief, in which the applicants for aid present 
themselves at the office of an official appointed for that pur- 
pose ; (3) the poor-house, or alms-house, for those who cannot 
possibly keep up homes of their own. 

All these methods have their disadvantages : in-door relief 



§ 246] Charities and Corrections. ^6^ 

creates habits of pauperism ; the poor-house is almost always joy- 
less, and sometimes cruel. The whole problem is much compli- 
cated by the large number of charitable societies and individuals, 
some of whom give indiscriminately and some have regular pen- 
sioners : cases are not unknown in which a pauper family draws 
an annual stipend from each of three or four different organiza- 
tions, and lives in comfort. The most effective means of dealing 
with the problem of poverty is the Associated Charities, an organ- 
ization existing in most cities for the purpose of registering and 
examining all applications for aid, so as to deter the worthless 
and to prevent duplication of effort for the worthy ; and, further? 
to help families to become self-sustaining. 

By degrees the state has taken upon itself the problem of 
the defective classes. First, the insane, who until about 1830 
were habitually treated with a disregard of humanity which 
almost surpasses belief It was the work of one woman, Doro- 
thea Dix, to arouse pubhc sentiment in the United States on 
this subject, by insisting that public hospitals be estabhshed for 
the cure of the curable and the custody of the incurable, who 
in many cases are s'till relegated to county poor-houses. The 
state of New York has recently assumed the care of all the 
insane within its borders, a step which ought to be taTcen in 
every state. This humane reform includes the right to public 
supervision of all private insane asylums ; and the manner of 
commitment of persons supposed to be insane is carefully 
regulated by statute. 

The blind, the deaf and dumb, and the idiots have also been 
made state wards by most of the states, so that they receive 
education, and sometimes support, at public expense. The 
ground for this care is, first, to lessen the suffering and depriva- 
tion of such persons ; and, secondly, to enable them to render 
such services to the community as their conditions allow. 

Among the last to engage the attention of the pubhc has been 
the most helpless class of all, the little children. The care of 
orphans has for many years ordinarily been assumed by private 



568 Public Order. [§ 246 

charitable institutions, which have taken little children and 
sometimes kept them twenty years. Institution Hfe is unfavor- 
able to moral development, and institution children are often 
helpless when they get out into the world. To meet this need, 
has been devised the method of gathering up friendless children 
in order that they may be distributed among childless families. 

The child-saving work is conjoined with other movements for 
the prevention of crime at its fountain-head, by caring for boys 
and girls who lack home influences and home restraints, so as 
to prevent the building-up of the lawless, hoodlum type, which 
is so dangerous in cities. Until within a few years the boy 
charged with a petty crime was likely to be sent to jail, where 
he fell in with hardened criminals. Now, in a few states chil- 
dren are brought before juvenile courts held, if possible, away 
from the regular court-houses ; and, if they have not parents 
who are fit to take care of them, they are sent to some institution, 
or turned over to a Children's Aid Society, which will try to find 
them homes. 

A part of the same uplifting idea, now adopted in several 
states, is the reform of the prison system by indeterminate sen- 
tences, under which a man who is imprisoned for the first time 
and who behaves well is released after a short detention and 
given an opportunity to reform. If he falls back into evil 
courses, he may be re-arrested under the original sentence with- 
out a second trial ; but, if he goes on well, when the maximum 
term has expired he is a free and a saved man. 

The various public correctional and charitable institutions in 
a single state may be as many as twenty in number, besides 
county institutions. The ordinary type of single institution 
government is an executive board, commonly of people living 
in the neighborhood of the institution. This method lacks 
proper state supervision ; and therefore, in about half the states 
of the Union, boards of correction and charity have been ap- 
pointed, some with executive power, some with the right to 
visit, report, and require uniform accounts. The state chari- 



§ 247] Liquor Traffic. 569 

table and correctional officials have a lively " National Confer- 
ence of Charities and Corrections," which meets annually and 
publishes an elaborate report. 

The extent of public charity of every kind is to some degree 
measured by the expense. In 1890 the total amount spent by 
the forty-four state governments for the defective, criminal, and 
poor was about $21,400,000 ; the local expenditures were about 
$30,400,000. In prosperous Massachusetts, 11,300 of the 
population received public aid in some form. 

247. Regulation of the Liquor TraflBc. 

The increasing use of alcoholic liquors causes uneasiness to 
most civilized governments, and is almost everywhere subject 
to some restrictions. How do American governments regulate 
the traffic? The English and Colonial method was to lay a 
revenue duty on the importation and manufacture of fermented 
and distilled liquors ; and to regulate inns and drinking-houses, 
simply with a view to public order. Until about 1830 the use 
of liquor was treated by the United States like the use of 
tobacco, — as a convenient subject for tax because so many 
people liked it. Then arose the Washingtonian Societies, the 
first " temperance " organizations, which urged moderation in 
drinking. Soon after came societies for total abstinence. 

Various ways of dealing with the question have been tried, 
(i) In 185 1 the opposition to the use of liquors reached such 
a point that Maine evolved a drastic method of regulation, — 
namely, the absolute prohibition by law of the manufacture, sale, 
or use of any form of malt or spirituous Hquors within the com- 
monwealth. The movement has spread widely through the 
Union : Maine, Kansas, and North Dakota have constitutional 
prohibition ; Rhode Island and South Dakota have once had 
but later abandoned such a provision. 

(2) In several states the sale was prohibited by statute, as in 
New Hampshire from 1855 to 1903, Iowa from 1884 to 1894, 
Massachusetts from 1869 to 1875, and Vermont from 1852 to 



570 Public Order. [§ 247 

1903. In most of the prohibition states, however, breweries 
and distilleries exist and are steadily at work, and liquor is 
openly sold in every city ; for it is almost impossible to get 
evidence against a liquor-seller without employing a "spotter," 
who shall purchase and himself taste the beverage so as to 
swear to its character ; and in many places juries will not 
convict on that evidence, or on any other. Then, too, some 
means must be provided for the sale of liquor for medicinal 
purposes, and this leads to underhand sale by druggists. Upon 
the whole, the prohibitory laws do not in the long run prevent 
the sale of liquor, although they set upon it the stamp of public 
disapprobation and put it in the power of any community so 
disposed to relieve itself of the business. 

(3) Another method of dealing with the liquor traffic is 
simply to let it alone, except for the small federal tax. In a 
few states the liquor business is treated like any other pursuit, 
except that there are laws against selling liquor to known 
drunkards, to minors, or to persons already intoxicated. 

(4) Local option means that any town or city which so votes 
shall be entitled to the machinery of local and state government 
to prevent the sale of liquor. Under such an arrangement, a 
thirsty man may seek satisfaction in some near-by town which 
permits the sale ; but the system greatly lessens the amount of 
liquor sold, increases savings, and keeps growing children and 
youth from a first-hand acquaintance with the saloon. 

(5) License, which in the United States tends toward high 
license, has two merits, — that those who pay for hcense are in- 
terested to prevent kitchen bar-rooms ; and that as licenses grow 
more expensive the number of drinking-places decreases. It 
is also very productive : in the state of New York the license 
fees amount to ^13,000,000 a year. The objection most com- 
monly brought is that license makes the state a partner in a 
demoralizing traffic, and helps to make the business of liquor- 
selling respectable. 

(6) Another method, which was tried in some of the Western 



§248] Public Health. 571 

states with no success, was to make the saloon-keeper, or even 
the owner of the building, responsible for loss of wages and 
neglect of family on the part of a man who drew his supplies 
from the saloon. It was found difificult to establish the owner- 
ship of the property and to get conviction on any evidence. 

(7) Another unusual Hquor law is the South Carolina state- 
account system described above. The system is a modification 
of the Norwegian, or Gothenburg, system, by which the num- 
ber of drinking-places is greatly reduced, and the business is 
managed by the most public-spirited men in the community, 
who try to sell as little as possible. 

Of all these systems, that which results in the greatest peace 
and quiet within the state is the local-option system combined 
with high license. The conditions of the whole problem do not 
readily appear upon the surface. In the large cities most of the 
saloons are owned by the great breweries, which furnish the capi- 
tal, pay for licenses, and defend suits. The prosecution of a 
liquor case is a difficult and thankless task, for evidence is hard 
to get, is discredited in advance, appeals are numerous, and 
juries difficult to convince. Any attempt seriously to diminish 
the amount of liquor manufactured and sold is resisted by power- 
ful vested interests, and at the same time is hampered by the fact 
that in few communities do the majority of the voters really feel 
a moral reprobation for the purchaser of liquor. 

248. Public Health. 

For the protection of the public, the sanitary conditions of 
the country must be regulated by law. During the last hundred 
years the human race has come to realize that dirt and foul air 
are two of the most destructive disease promoters. Cleanli- 
ness of person, clothing, and house is the ordinary condition 
of civiHzation (even Homer observed that young men always 
wanted clean linen when they went to a dance) ; and the abun- 
dant supply of water in most American cities greatly contributes 
to cleanliness, and hence to health. Where filth is persistent, 



5/2 Public Order. [§ 248 

the local authorities under state laws have the right to close up 
houses and other buildings, and even to condemn them and 
tear them down. 

A force always working against public cleanliness is the soft- 
coal smoke which defaces nearly all Western cities, and adds 
millions of dollars a year to the cost of living, by the unneces- 
sary fouling or destruction of clothing, fabrics, and buildings. 
An influence more dangerous to health is the foul and disease- 
breeding dust from unpaved or poorly-paved streets, especially 
in the poorer quarters. 

All our largest cities except three have public sewers, by 
which refuse is easily and immediately carried away to a 
distance from crowded population. New Orleans has still some 
private sewers, for the use of which the people are charged. 
The combination of abundant water and sufficient sewerage 
has reduced the death rate of modern cities by about one 
half, and has correspondingly raised the productive capacity 
of the country. 

The power of the state to deal with disease extends to recog- 
nized means of prevention : thus, many states have laws com- 
pelling people to be vaccinated ; houses in which contagious 
diseases exist are marked with flags ; the inmates may be quar- 
antined in their own houses ; and the sick and the suspected 
may be carried by public authority to hospitals. The power 
over health and safety to life extends to laws for regulating 
buildings. In most cities, a specified area of every lot devoted 
to tenement-houses must be reserved for light and air, and all 
buildings must have proper sanitary drainage. 

The federal government in its general regulation of interstate 
and foreign commerce may take precautions to prevent the 
spread of disease. It created a short-lived " National Board of 
Health " in 1879 ; but now this authority is exerted primarily 
by the states, which in each port provide a health officer and 
assistants, who examine vessels. Under the laws of the United 
States, immigrants afflicted with contagious diseases are to be 



§249] Fire Protection and Light. 573 

returned to the countries from which they came ; even con- 
sumption has been held to be a disease which would warrant 
sending the sick person back. 

The people of the states take their own precautions against 
contagion from other states. In repeated instances, people 
flying to escape yellow fever and like diseases have been 
stopped by armed mobs and compelled to return or to stay in 
refugee camps. The fortunate discovery that yellow fever is 
communicated, not by personal contact, but by mosquitoes, will 
probably end this insensate and irregular method. Hospitals, 
built and supported in whole or in part by the national govern- 
ment or by state or local governments, are to be found every- 
where in the United States, and thousands of poor people 
receive treatment free of charge. Some cities have also free 
district physicians and dispensaries. 

249. Fire Protection and Light. 

A public service of great cost and much importance is the 
protection from fire. From the earliest colonial days, wooden 
houses and villages have been subject to fires, and the only 
means of fighting them was to pass buckets from hand to hand. 
About the time of the Revolution, in the larger places hand 
fire-engines, which were nothing but pumps on wheels, were 
provided ; a little later sprang up organized volunteer fire com- 
panies, the members of which ran to their engine-houses on an 
alarm and dragged out their engines. These companies were 
very disorderly, much involved in politics, and not infrequently 
stopped fighting the fire in order to fight each other. Fire- 
insurance companies, which sprang up about the time of the 
Revolution, divided, but did not diminish, the loss. About 
i860 began the construction of powerful steam fire-engines, 
which required skilled men and proper housing ; and slowly 
there grew up a system of paid firemen, on duty in their 
engine-houses day and night. The introduction of the fire- 
alarm telegraph about 1870 simplified the giving of notice- 



^74 Public Order. [§ 249 

and now the routine is so perfected that within sixty seconds 
after the tap of the bell a powerful steam fire-engine, well 
manned, will dart out of an engine-house and start straight for 
the spot where the alarm was given. 

In the great cities the system includes hose trucks, chemical 
engines, protection wagons (often supported by the insurance 
companies), and monster ladders and life-saving apparatus. 
The departments are arranged on a semi-military basis, with 
chiefs and sub-chiefs and a permanent force. The men are 
highly paid : the firemen in New York receive on an average 
the same salaries as the men teachers in the city. New York 
in 1902 spent $5,200,000 on its fire department, or ^1.50 per 
head of the population. 

The duty of fighting fire involves the right to prevent it : 
building laws prohibit the construction of wooden structures 
within fire limits ; and there are strict laws for the construc- 
tion of stairways, fire-escapes, and approaches to frequented 
buildings. The annual loss by fire in the United States is about 
$150,000,000. In the opinion of experts, proper building laws, 
which would little increase the cost of construction, would save 
seven eighths of this loss. 

Somewhat akin to fire protection is public lighting ; it is more 
than a convenience, for it makes possible safe circulation at 
night. Many cities permit gas and electric companies to lay 
their mains through the streets, and to supply both private con- 
sumers and the cities themselves ; in many other cities the 
municipality owns the gas or electric-light works, and serves 
private consumers. In 1899 about 300 cities, including Detroit 
and Chicago, had municipal electric plants, and 12 cities had 
public gas works. The private companies have special privi- 
leges of using the streets, and furnish light to the city govern- 
ments ; hence they are subject to restrictions and investigations 
not usual in other corporations. 



§ 250] Police Force. ^y^ 

250. The Police Force. 

For the serving of legal processes, the arrest of criminals, the 
maintenance of order, and the execution of many laws, a force 
of public servants clothed with the authority of government is 
necessary. This function rests wholly upon the states, which 
have delegated the greater part of it to the local governments. 
Most foreign countries have a system of centralized rural police, 
or gendarmerie ; but no state in the Union has ever organized 
such a force, except that sometimes there is a special police to 
detect illegal sales of liquor. 

The rural peace officer in America is commonly the constable, 
elected by popular vote and wholly inadequate for any emer- 
gency. In case of riot or of great public danger, men are often 
sworn in as special constables, a commission which gives them 
authority to make arrests and to resist attacks on persons or 
property. Some of the detective agencies undertake, in case 
of strikes, to furnish bodies of armed men sworn in as con- 
stables, and maintained at the expense of the owners of the 
property. This is very close to private war, and ought to be 
made unnecessary by proper state organization. 

The colonial and later towns had paid watchmen, the germs 
of our modern police ; and it was a favorite occupation of the 
gilded youth " to box the watch " — that is, to thrash the guardians 
of the peace. In 1857 was organized for New York City the 
first so-called " metropolitan " police, that is, a body of men 
with military organization, well paid, and steadily on duty ; 
and all other cities and many smaller places have adopted this 
system. The police force of Greater New York numbers 7,700 
men, and costs $11,300,000 annually. The police patrol the 
city by night and day, and have summary powers of arrest of 
criminals in the act, and even of suspicious characters ; they 
very often, without warrants, arrest people for criminal acts 
which they have not seen, a practice which is strictly illegal. 
They also serve criminal processes, act for the health depart- 



5/6 Public Order. [§251 

ment, sometimes take a census, and are the antennae of the city 
government. 

The police stations are headquarters for the force and for the 
police courts ; they include prisons, which are simply branches 
of the state prison system, and often lodging-houses for the 
homeless poor. AH these responsibilities give the police an 
authority which is usually exercised for the good of the com- 
munity, but which has many times been shown to be capable 
of abuse. 

251. Riots and Insurrections. 

The continuance of government and of civilization depends 
upon the ability and the purpose of public officials to compel 
the observance of the laws, and to quell all irregular and violent 
attempts to secure even proper ends. The foundation of crimi- 
nal law is the conception that the state, and not the person 
injured, is to take in hand the punishment of the culprit ; the 
foundation of civil law is the conception that there is a pre- 
existing organization of impartial tribunals acting under legal 
principles, by which disputes may be settled without the use of 
force ; the foundation of constitutional law is the practice of 
bringing about changes in government by methods prescribed 
in the form of government itself, — by peaceful discussion and 
by voting for candidates who will favor desired legislation. 

The experience of mankind shows that in most highly- 
civilized communities there is a latent substratum of savage 
instincts, and that a considerable fraction of the population can 
be driven by prejudice or mere excitement to lawless destruc- 
tion of lives and property. A great danger to society begins 
when men associate themselves, not simply to commit crimes, 
but to oppose lawful government. Such resistance may take 
any one of several different forms : (i) a mere mob, formed 
without preconcert, and anxious only for the sport of wrecking 
buildings and maiming and killing obnoxious people ; (2) a riot, 
which is a more determined stand against the authority of the 



§ 251] Riots and Insurrections. ^yj 

public ; (3) an insurrection, intended to prostrate the authority 
of the existing government ; (4) a rebellion, which is a deter- 
mined effort to overthrow the existing government and to sub- 
stitute something else. The gradations from one to another of 
these forms of violence are impossible to trace : the riot to-day 
may be an insurrection to-morrow, and may turn into a rebellion 
the next day. 

Such disorders were very common in England, which ex- 
perienced two organized and successful rebellions, in 1643 and 
1688. Every colony was accustomed to riots or insurrec- 
tions, the most notable being the Bacon Rebellion in Virginia 
in 1676, the Leisler Rebellion in New York in 1690, the New 
Jersey Quitrent Riots about 1745, the Stamp Act Riots of 1765, 
the Regulator Riots in North Carolina in 177 1, and the Boston 
Tea-Party in 1773. 

The Revolution itself was full of riots, and its main purpose 
was through rebellion forcibly to destroy the existing govern- 
ment, so as to erect a better structure by a free people. As 
soon as state governments were established, they began to 
suffer from disorder: the Shays Rebellion of 1787 came near 
uprooting the government of Massachusetts. The most per- 
sistent effort to overthrow a state government thereafter was the 
so-called " Dorr Rebellion" in Rhode Island in 1843. Many 
riots and interferences with state governments grew out of the 
slavery contest, notably the Garrison Riot of 1836 and the John 
Brown Raid of 1859. Since the Civil War there have been 
fearful riots in Pittsburg (1877), in Cincinnati (1884), and 
in Chicago (1894), in all of which large amounts of private 
property were destroyed and many lives lost. 

The ordinary method of preserving order is through the 
courts. A person believed to be guilty of riotous and disorderly 
action is subject to arrest on an ordinary court warrant, served 
by the sheriff or his deputy as agent of the court. In case of 
resistance to such arrest, the sheriff may swear in a large 
number of additional deputies, all of whom have authority 

37 



578 Public Order. [§252 

either to serve warrants or, like the ordinary policemen, to 
arrest persons whom they themselves see committing riotous 
acts. In case the deputies are not sufficient, the sheriff has the 
power of calling the posse comitatus, or power of the county ; 
that is, he may summon all the able-bodied men within the 
jurisdiction of his court to assist him. The posse is a clumsy 
and undisciplined body, and in practice is used only to compel 
bystanders to take part with law and order. 

A consequence of riots, and especially of insurrectionary acts, 
may be a prosecution for treason. A few cases of treason 
against a state have been tried, the most notable being that of 
John Brown, who in 1859 was executed on a charge of murder 
and of treason against Virginia. Treason against the United 
States is a perfectly well-recognized crime, defined in the consti- 
tution as " levying war " against the United States, or " adhering 
to their enemies, giving them aid and comfort." Nearly all the 
violent outbreaks against the United States have been followed 
by treason trials : men were convicted and sentenced to death 
for their share in the so-called "Whiskey" Rebellion in 1794 
and the Fries Rebellion in 1799 ; Aaron Burr was unsuccessfully 
tried for treason in 1807 ; a man named Hoxie was tried in 
1808 ; and there were several treason trials during the war of 
18 1 2. During the Civil War there were some cases ; and one 
man, Dr. Milligan, was convicted of treason by a military com- 
mission and condemned to death. After the war the trial of 
Jefferson Davis for treason was allowed to break down on a 
technicahty. All the men convicted in 1794 and 1799 were 
pardoned by the president, and Milligan's conviction was held 
by the Supreme Court to be invalid ; so that in the whole 
history of the United States no person has ever suffered death 
as a traitor to the United States. 

252. Suppression of Disorder. 

The administrative function of keeping order is divided be- 
tween the national and state governments, with some authority 



§252] Suppression of Disorder. 579 

in the local governments. The mayor of a city is usually held 
responsible for the protection of lives and property through the 
police ; the county sheriff acts through his deputies ; the gov- 
ernor of a state controls the militia ; the president of the United 
States may call on the militia of any state, and also on the 
army and navy of the United States. 

Warrants and prosecutions for acts already committed are 
entirely useless against a sudden riot or insurrection. When it 
is evident that the ordinary machinery of the courts is unavail- 
ing, it is usual for the mayor or the county sheriff to notify the 
governor and to ask for troops, — that is, for the state militia. 
Those who belong to the organization are legally compelled to 
turn out on the governor's call, either to fight the mob or to 
guard persons and property. Often the militia is unwilling to fire 
on its own townspeople ; but sometimes regular street fights 
take place, and there have been cases in which the militia has 
been on duty for several weeks or months. 

Where the militia is insufficient, under the constitution of the 
United States the state legislature or governor has a right to 
call for federal aid. In such cases the president may call out 
the militia of neighboring states ; but the best dependence is 
the regular army, which has no personal affiliations with mobs 
and can be depended upon to obey orders exactly. In one 
of these three ways — by the officers of the courts, by militia 
under state authority, or by troops sent by the federal govern- 
ment on the call of a state — disorders directed against state 
governments can be speedily quelled. 

Whenever the execution of the federal constitution or of a 
federal statute or a federal service (like the mails) is opposed, 
the direct power of the federal government may be invoked. 
The president may intervene on his own responsibility wher- 
ever, as is usually the case in railroad strikes, the carriage of 
the mails is interrupted, or wherever the prime object of the 
movement is to paralyze the execution of federal law. Many 
instances of such resistance have occurred. In 1794, in the 



580 Public Order. [§252 

Whiskey Rebellion, a large part of the population of South- 
western Pennsylvania rose to prevent the collection of the excise 
on distilled liquor ; they assaulted federal officials, plundered 
the mail, and killed one man. The president called out 15,000 
militia, who put down the rebellion without firing a gun. In 
1799, in the Fries Rebellion in Eastern Pennsylvania, oppo- 
sition to the collection of a federal tax went to the length of 
a rising, which was easily suppressed. In 1806 Aaron Burr 
organized a desperate expedition against New Orleans. In 
1808 there was violent resistance to the embargo, especially 
in Vermont. In 1856 the Mormons in Utah resisted the fed- 
eral government till a considerable military force was sent out. 

The Civil War was by far the most determined of all resist- 
ance to the United States : eleven states and parts of several 
others threw off their allegiance to the United States, and for 
four years carried on an armed contest. During the war, in 
1863, there was a terrible draft riot in New York City, in which 
1,000 people were either killed or wounded ; and it was only 
put down by using the army. Since the war there has been 
very little opposition to the authority of the federal govern- 
ment, except the insurrection in the Philippines following the 
transfer of those islands by Spain, in 1899. 

Among the interesting questions which have arisen in the 
process of enforcing order is whether United States troops 
may be called upon to act as a posse comitatus. The ordinary 
purpose of the posse is to protect legal officers in arresting 
persons previously charged with crime : the ordinary purpose 
of the army is to break up armed resistance by assailing any 
person who is a part of the insurrection, wherever found. Al- 
though after the Civil War, under authority of Congress, troops 
were frequently used as a posse, it is an unusual expedient, 
which creates as many difficulties as it settles. 

Another question is whether troops may be called out with- 
out the request of a governor. This was practically settled by 
Washington in 1 794, when he summoned militia to put down 



§253] Defence of Society. 581 

the Whiskey Rebellion, acting against Governor Mifflin's pro- 
test. In 1861 President Lincoln used the same power; and 
in 1894 President Cleveland called out troops to put down the 
Chicago strikes without the desire of the governor of Illinois. 
In 1795 an act was passed authorizing the president to use his 
discretion in such cases; and in 1807, under the pressure of 
the Burr insurrection, the president was authorized to use federal 
troops and naval forces for the suppression of disorder. 

253. Ultimate Defence of Society. 

The most orderly governments are not by any means the freest. 
In all history, the ruin of republican government has been the 
good order maintained by a despot through troops which 
would obey him ; and some of the American cities in which 
there is most quiet and least public protest are among the 
worst governed, because the people have not the spirit to 
demand honesty and public service. 

The ordinary protections for civil government are three, 
(i) The ordinary guardians of the peace. The police in the 
cities, though not a perfect body of men, have a semi-military 
discipline, and can almost alv/ays be relied upon to stand 
against the mob which contemns their authority. In the open 
country the constables are not well organized ; hence the large 
numbers of train robberies and like crimes, most of which 
could be prevented by a proper state police. 

(2) The mihtia. Of late years in many large cities immense 
armories have been constructed, which are intended to be 
citadels and points of departure in case of civic disturbance. 

(3) The regular army and navy, which, as the most highly- 
disciplined, is the most effective ; and it can be used in states 
where governors fail to do their duty. 

Behind all these arrays of men, the real defence of popular 
government is the determination of Americans that they will 
have honest and efficient public service. The way to have it is, 
first of all, to vote for it persistently : there are few communities 



5^2 Public Order. [§253 

which cannot secure any kind of government which a major- 
ity of voters in two or three successive elections insist upon. 
If voters are apathetic, or if there is fraud in counting the 
votes (a frequent and dangerous method of defeating the 
public will), a determined public protest by men of known char- 
acter and force in the community has a terrifying effect on bad 
government. 

Occasionally, of late years, good men have adopted the mob 
method of securing their ends. A notable case was the ap- 
pearance in the session of the Chicago city council of a body 
of armed men, who threatened to shoot any councilman who 
voted for an obnoxious street-car franchise. This is simply 
playing into the hand of the worst element ; for it is a method 
that can be applied equally by the bad citizen to the good 
councilman. 

Yet, for the protection of his legal rights through a free gov- 
ernment, the American must be ready to fight if necessary, — 
not simply to join the army in case of war, but to come out as 
a special policeman or deputy or as a militiaman, when riots 
are threatening. The wild-beast element in society is kept 
down only by the conviction that in the last resort the forces 
of organized society will fight harder and fight longer. The 
motto of every American is, and must be, the same as the 
motto of Massachusetts : Ense petit placidam sub libertate quie- 
tem^ " With the sword under freedom, seek peace and quiet." 
The two most important lessons for Americans are these : to 
keep the peace by obedience to law and quiet participation in 
making a good government ; and to use proper means under 
the law, forcible if necessary, to protect the government from 
violence and to compel public servants to do their duty. 



INDEX. 



INDEX. 



A DAMS, JOHN, as president, 259. 
Adams, J. Q., as president, 260. 

Adjutant-general, state, 143. 

Agreement of the People, 57. 

Agriculture, Department, 278, 279 ; 
question of tenant farming, 324 ; 
increasing size of farms, 326, 327 ; 
colleges, 471, 538, 548 ; state regu- 
lations, 500 ; federal aid, 500. 

Alabama, negro disfranchisement, 69. 

Alaska, annexation, 344, 345 ; govern- 
ment, 370. 

Aliens, number and naturalization, 9, 
10, 17 ; distribution, 10; privileges, 
15, 16; claim of native country 
over naturalized, 18; obligations, 19; 
in cities, 204, 205. See also Immi- 
gration. 

Amendment of constitutions, prepara- 
tion, 59-61 ; ratification, 61-63 > °^ 
bills in Congress, 251, 252. 

American Educational Association, in- 
fluence, 553. 

Annexation, citizenship through, 18 ; 
history, 343-345; methods, 345,346 

Appointments. See Civil service. 

Appropriations. See Expenditures. 

Area, national, 5 ; history, 343-345. 

Army, obligation of military service, 
20 ; civil head, 462 ; officers, 462- 
464 ; pay, 464 ; strength, 464 ; en- 
listment, 464 ; peace duties, 464 ; 
government, 464, 465 ; administra- 
tion and general staff, 465, 466, 477 ; 
intelligence department, 466; mili- 
tary academy, 469, 470; military 
training at agricultural colleges, 471 ; 
War College, 471 ; needs, 471, 472, 
477 ; fear of a standing, 472 ; strength 
during wars, 474 ; methods of raising 
to war footing, 474-476 ; cost, 477 ; 
use in suppressing disorders, 579- 
581. See also Militia, Navy, War. 



Arthur, C. A., as president, 261. 
Articles of Confederation, 49, 50, 57. 
Assemble, right to, 28. 
Associated Charities, 567. 
Attainder, forbidden, 124. 
Attorney-general, state, 143 ; federal, 

278. 
Auditor, state, 143. 
Australasia, trade with, 455. 
Australian ballot, 74-76, 84, 85, 104. 

See also Elections. 



gAKER ISLAND, claimed, 345. 
Ballots. See Elections. 

Banks, first, 483 ; functions, 487 ; » 

national, 488, 489 ; practical associa- 
tion, 489 ; savings, 489 : trust com- 
panies, 4S9 ; state regulation, 500. 

Borough 'government, 169, 170. 

Boss, political, 100-103, i°6, loS ; 
and the legislature, 134-136. See 
also Politics. 

Boston, rapid transit, 529, 533. 

Boundaries, shifting local. 7 ; national, 
346-348 ; adjustment of internal, 

348-351- 

Bribery, political, 105, 106 ; legislative, 
135 ; in cities, 190, 212, 530 ; in 
Congress, 247, 

Bridges, federal regulation, 516, 517. 

Buchanan, James, as president, 260. 

Budgets, municipal, 192, 413, 414 ; 
system, 410 ; federal substitute, 410- 
412 ; state, 412, 413 ; lack of respon- 
sible control, 42S. 

Buildings, public, municipal, 329 ; 
state, 330-332 ;^ federal, 332, 334 ; 
criminal jurisdiction over federal, 
within states, 357, 358. See also 
Land. 

Business. See Commercial organiza- 
tion. Industries. 



585 



586 



Index. 



pABINET, federal, character, 279, 
280; and the president, 280-282. 

California, admission, 117; annexation, 
344-346 ; tax on colleges, 392 ; state 
text-books, 542. 

Canada, trade with, 454, 458. 

Canals, federal land grants, 339; era 
of, 512; abandoned, 513, 519; federal, 
around rapids, 517; state construc- 
tion, 518, 519. 

Capital, character of state, 331; na- 
tional, 333-335- 

Capitol, state, 331 ; national, 334. 

Carnegie, Andrew, fund for research, 
546. 

Caucus, political, purpose, 92 ; com- 
position and official regulation, 92, 
93 ; defects, 93 ; influence in Con- 
gress, 246. See also Politics. 

Central America, trade with, 454-458. 

Charities and Correction, poor, 203, 
204, 566, 567; public responsibility, 
566; insane, 567; deaf and dumb, 
567; orphans, 567, 568; juvenile 
criminals, 568; administration, 568; 
national conference, 569 ; cost, 569. 
See also Punishment. 

Charters, special city, forbidden, 124, 
137; character of city, 1S4-186; rail- 
road, 522. 

Chase, S. P., on the Union, 123; as 
chief justice, 29S. 

Chicago, area, 7; elevated railroad, 
529; desire for public ownership of 
traction lines, 534. 

Children's Aid Society, 568. 

China, protectorate, 375 ; trade with, 

455- 
Chinese, naturalization and suffrage 
denied to, 17, 70; exclusion, 443, 

452, 453- 

Cincinnati, railroad built by, 410. 

Circuit courts, 303; of appeals, 303. 
See also Judiciary (federal). 

Cities, rapid growth, 8, 210; rank, 9; 
history, 1S1-183 ; development of 
interest in government, 183 ; char- 
ters and functions, 183-186, 211; 
state control, 1 86-1 88, 211 ; councils, 
188-192; control of finances, 192; 
mayor, 192-194; departments, 194- 



196; officials, 196, 197; civil service 
reform, 198-199; problem of popu- 
lation and its distribution, 201-205, 
210, 211; population of great, 202; 
transportation problem, 205-207, 211, 
528-530, 532-534; political condi- 
tions, 208-210; defects, 210-212; 
reforms, 212-214; ^^^^ estate, 328, 
329; budgets, 413, 414; debt, 421- 
423; municipal ownership, 428, 504, 
532-534; public health, 570, 571; 
fire protection, 573, 574; lighting, 
574; police, 575, 576. See also 
Local government. 

Citizenship, conditions, 15; state and 
national, 16 ; acquirement and loss, 
16-19; privileges and obligations, 
ig-2i ; and freedom, 21 ; interstate 
privileges, 121. 

Civil law. See Judiciary. 

Civil service, subordinate state officers, 
146, 147 ; spoils system in states, 
148; state reform, 148-150; munici- 
pal, 193, 194, 196, 197; municipal 
reform, igS, 199, 213 ; number of 
national employees, 277 ; presidential 
appointments and removals, 270- 
273, 281-2S5 ; normal term of presi- 
dential appointments, 283 ; minor 
national appointments, 285, 286; 
national spoils system and its effects, 
286-2S8 ; ineffectual attempts at re- 
form, 288-290 ; reform organization 
under the Commission, 290-292 ; ex- 
aminations, 292 ; practical difficulties 
of reform, 292, 293 ; appointment of 
laborers, 293 ; status of fourth-class 
postmasters, 293, 294 ; efficiency of 
reform, 294 ; in dependencies, 380. 
See also Executive. 

Civil War, cause of failure, 6 ; effect on 
doctrine of state rights, 123 ; magni- 
tude, 461, 5S0. 

Clay, Henry, as speaker, 217, 232. 

Cleveland, Grover, as president, 261. 

Climate, 5. 

Coal land, sale of public, 33S. 

Colonies, English, in America, liberty 
in, 22, 23; government, 41-43; Eng- 
lish control, 43, 44 ; suffrage, 44, 66, 
67; localgovernment, 44, 45, 174, 181, 



Index. 



587 



183; criminal law, 45; separation 
of powers, 59; political parties, 87; 
tenure of office, 148; land-holding, 
322, 335 ; boundaries, 34S, 349; 
tariff, 394; wars, 460; militia, 472; 
business man, 482; paper money, 
4S7, 493; money, 497; post-office, 
508; roads, 511; education, 536, 
537; churches, 555, 556; regulation 
of morals, 561, 562. See also Depend- 
encies, Territories. 

Colorado, woman suffrage, 70. 

Commerce, foreign, control, 447 ; im- 
ports and exports, countries and ar- 
ticles, 453-455 ; settlement of the 
balance, 455 ; future development, 
455 ; and the tariff, 455, 456 ; change 
in methods, 456 ; resulting develop- 
ment of great ports, 457 ; commercial 
neighbors, 457, 45S. See also Immi- 
gration, Shipping. 

Commerce, internal. Department, 27S, 
279; practical freedom from taxation 
of interstate, 390 ; federal and state 
regulation, 506-508; transmission of 
intelligence, 508-51 1. See aAo Trans- 
portation, and next titles above and 
below. 

Commercial organization, state regu- 
lation, 55, 125, 500, 501 ; business 
man, 482 ; partnership, 483 ; corpo- 
rations, 483-4S5 ; trusts, 4S5, 486 ; 
syndicates, 486; banks, 4S7-4S9; 
transfer of title to property, 4S9 ; 
exchanges and speculation, 490, 491 ; 
stocks and bonds, 491 ; contracts, 
493-495 ; weights and measures, 495, 
496 ; coinage and currency, 496-499; 
indirect federal regulation, 499 ; regu- 
lation of labor, 501-503. See also 
Industries, and next two titles above. 

Committees, of state legislatures, 131, 
133, 134 ; congressional, appoint- 
ment, 232-234 ; sessions, 234, 235 ; 
purpose and working of system, 235, 
236 ; on rules, 242 ; steering, 242, 
243 ; system compared with parlia- 
mentary, 243, 244 ; conference, 253, 
254. 

Common law, use by state courts, 155 ; 
use by federal courts, 309. ,. 



Comptroller, state, 143. 

Conflict of laws, 121. 

Congress, history, 51, 216-218; the 
Houses compared, 217, 220, 221 ; 
sessions, 226, 227; salary, 227, 228; 
mileage, 228 ; franks, 229 ; immuni- 
ties, 22g ; duties of members, 229 ; 
pairs, 229; quorum, 229, 230, 241, 
242 ; expulsion, 230 ; unwritten 
duties of members, 230, 231 ; officers, 
231; committee system, 233-236; 
public and private sittings, 237, 238 ; 
report of debates, 238 ; accommoda- 
tion for members and spectators, 
239 ; rules, 239-242 ; party manage- 
ment, 242, 243 ; and Parliament, 243, 
244 ; preparation and introduction of 
measures, 244 ; influences on legisla- 
tion, 245-247, 257 ; debate, 248- 
251 ; amendment of bills, 251, 252 ; 
voting, 252, 253 ; process of bills, 
253, 254 ; veto, 254-256 ; output of 
legislation, 256; private bills, 257; 
counting of the electoral vote, 263 ; 
and the president, 273, 274 ; and the 
Cabinet, 280 ; and the appointing 
power, 285 ; annexation by joint 
resolution, 346 ; relation of treaties 
and statutes, 443, 444. See also 
House of Representatives, Senate, 
and under the functions Commerce, 
Expenditures, Taxation, etc. 

Connecticut,educational suffrage qualifi- 
cation, 69 ; election of legislators, 128, 

Constitution, federal, guarantees of 
liberty, 23, 24, 30, 31 ; amendment 
of, a sovereign act, 38 ; genesis, 48- 
51; not a creation, 50; supremacy, 
58, 63, 122 ; interpretation, 63, 64, 
315-319 ; method and attempts at 
amendment, 59, 61, 62. See also 
next title. 

Constitutions, state, bill of rights, 23, 
46, 48 ; early, 45-48 ; elements, 56- 
59 ; tendency toward elaborateness, 
58, 59 ; framing and preparation of 
amendments, 59, 60 ; ratification, 60- 
63, 78 ; principles of expounding, 64 ; 
power to interpret, 64, 163-166, 316 ; 
restrictions on legislation, 124. See 
also next title above. 



588 



Index. 



Consuls, appointment and grades, 436, 
437; salaries and qualifications, 437; 
reform, 437, 438 ; status and func- 
tions, 438, 439. 

Contempt of court, punishment for, 
308, 309. 

Continental Congress, 49, 50, 216. 

Contracts, doctrine of obligation of, 
317, 493 ; colonial and Revolutionary 
impairment, 493, 494 ; prohibition 
of state impairment, 494, 495 : federal 
impairment, 495 ; prohibited con- 
tracts, 495 ; enforcement of labor, 
502. 

Conventions, constitutional, 50, 59-61; 
nominating, local and state, 93-95 ; 
national, 96-98. 

Convicts, hired out, 24; labor, 502. 

Copyright system, 492, 493 ; interna- 
tional, 493 ; trade marks, 493. 

Corporations, state and federal char- 
ters, 125, 484 ; landholding, 325, 
326 ; taxation, 387, 388 ; taxation of 
franchises, 388 ; beginnings, 4S3, 
484 ; principles of incorporation, 
484, 485 ; obligations, 485 ; amalga- 
mation, 485 ; trusts, 485, 4S6; com- 
mon and preferred stock, 491. 

Correction. See Charities. 

Councils, state, 141, 143; city, and the 
executive power, iSi, 192; organi- 
zation and functions, 189-192, 212, 
213 ; importance, 190, See also 
Cabinet. 

County government, size and popula- 
tion of counties, 174; types, 174, 
175 ; compared with town govern- 
ment, 175, 176 ; option, 176 ; limita- 
tions, 179 ; in cities, 195 ; real estate, 
331 ; county seat, 331 ; expendi- 
tures, 418 ; debt, 421, 422. See also 
Local government, Township-county 
system. 

County-precinct system, 176. 

Court of Claims, 304. 

Court of Private Land Claims, 304. 

Courts. See Judiciary. 

Criminal law, state control, 55. See 
also Judiciary, Punishment. 

Cuba, protectorate, 374, 375. 



jrjANISH WEST INDIES, at- 
tempted annexation, 344. 

Debate, in state legislatures, 132; re- 
port of congressional, 238 ; in the 
Senate, 248 ; in the House, 248, 249; 
character of congressional, 249, 250; 
obstructions and filibustering, 250, 
251 ; previous question, 251. 

Debt, federal borrowing for current 
expenses, 412 ; purpose of state and 
municipal, 412, 413; history and re- 
pudiation of state, 419, 420; out- 
standing state, 420; limitation on 
state, 421 ; municipal, 421-423 ; 
county, 421; school district, 422; 
history (A funded federal, 423-425 ; 
federal paper notes, 424, 425 ; rate 
of interest on federal, 425,426; forms 
of federal, 426, 427 ; danger and bur- 
den, 429. 

Delaware, amendment of constitution, 
60 ; educational qualification for suf- 
frage, 69 ; no veto povifer, 136. 

Democracy, limitations, 38. See also 
Popular government. 

Dependencies, personal rights in, 19, 
31, 32, 372; government of organ- 
ized, 367, 368 ; military occupation, 
369; authority over ceded, pending 
organization, 369 ; precedents and 
theories of status, 369-372 ; and ter- 
ritories, 373 ; problems, 378-380. 
See also Territories. 

Diplomacy. See Foreign intercourse. 

District courts, federal, 303. See also 
Judiciary (federal). 

District of Columbia, government and 
control, 124, 356; origin, 355. See 
also Washington. 

Districts, 170. 

Division of powers. See State govern- 
ment. 

Docks, ownership, 328, 329. 

pAST FLORIDA, annexation, 344, 

345- 
Education, political, 11, 12; and suf- 
frage, 69; state control, 126, 541, 
542 ; state superintendent, 143 ; ap- 
pointment of teachers, 146, 147, 552; 
school districts, 169 ; unit of man- 



Index. 



589 



agemenl, 179 ; control in cities, 191, 
192; school lands, 339; school dis- 
trict debts, 422 ; military and naval, 
469-471 ; beginnings, 536 ; pre-Rev- 
olutionary colleges, 537 ; establish- 
ment of endowed schools, 537 ; early 
curricula, 537 ; first state colleges 
and professional schools, 537; devel- 
opment of public schools, 537, 538, 
541 ; development since the Civil 
War, 538, 539; first women's col- 
lege, 53S; co-education, 539, 547; 
present private, federal, state and 
local provisions, 539,540, 54S; ques- 
tion of compulsory, 540; private and 
endowed schools, 540, 54 1 ; denomi- 
national schools, 541, 549 ; require- 
ment of English language, 541 ; 
district schools, 542, 552; graded 
schools in towns and cities, 543; 
night and vacation schools, 543 ; at- 
tendance, 543 ; high schools, 543, 
544; organization of universities, 
544 ; types of their administration, 
544, 545 ; technical, 545 ; statistics of 
higher, 545, 546 ; exemption from 
taxation, 546 ; special funds, 546 ; 
growth of state imiversities, 546, 
547 ; their finances, 547 ; their char- 
acteristics, 547; relation of schools 
and colleges, 547, 553; agricultural 
colleges and experiment stations, 
548 ; cost, 548 ; religion and the 
public schools, 548, 549; Sunday 
Schools, 549 ; libraries and museums, 
549-551 ; free lecture courses, 551 ; 
reform in administration, 551, 552; 
need of trained teachers, 552; tenure 
and retiring allowance for teachers, 
552; female teachers, 553; teachers' 
associations, 553 ; upward tendency, 

554- 

Education, National Bureau of, 539. 

Elections, residence of candidates, 12, 
72, 73, 128, 223; obligation of par- 
ticipation, 21, 581, 582; districts, 
71, 72 ; precincts, 72 ; registration, 
•Jl, 84; methods of voting, 73-75 ; 
time, 75; frauds, 75, 76; count- 
ing of the votes, 76, 85 ; minority 
representation, 76, "jj; proportional 



representation, yy ; plurality, yj, y?, ; 
majority, 78; popular legislation, 
78-Si; extent of participation in, 
82-85 i defects and reforms, 84, 
85; expense account of candidates, 
85; infhiencing voters, 104-106; to 
legislatures, 12S; of governor, 141; 
of state executive officers, 144 ; of 
state judges, 152, 153 ; of mayor, 192 ; 
of city officials, 194 ; of senators, 218, 
219; of representatives, 221, 222; of 
president and vice-president, 261-264. 
See also Politics, Suffrage. 

Electoral commission of 1S77, 263, 264. 

Electric railroads, as rivals to steam 
roads, 513, 531, 532; introduction, 
528; development of country lines, 
530, 531 ; state regulation, 532. See 
also Street railroads. 

Eleventh Amendment, 312. 

Eminent domain, power and use, 125, 

327- 

England, history of liberty, 21, 22; 

sovereignty in, 38 ; growth of pop- « 
ular government, 39-41 ; local gov- 
ernment, 41, 174; unity of powers, 
53, 243, 244; constitution, 56; writ- 
ten constitutions, 57; history of suf- 
frage, 66 ; growth of political parties, 
87; treaties with, 440; trade with, 
454; weights and measures, 496. 

Equality in American society, 11. 

Equity, principle, 158. 

Erie Canal, 512, 51S, 519. 

Ethnology, Bureau of, 279. 

Exchanges, stock and produce, 490; 
speculation, 490, 491. ' 

Excise. See Internal revenue. 

Executive, colonial, 43 ; division of 
state, 140 ; governor and his duties, 
140-142 ; former state councils, 141 ; 
lieutenant-governor, 142, 143; lack 
of unity of control in state, 143 ; state 
departments and officials, 143, 144; 
state boards, 145, 146 ; classes of du- 
ties of state, 147, 148 ; judicial control 
over officials, 161-163, 311, 312; ju- 
dicial control over executive acts, 
165, 166; town, 171, 172; city, 191- 
197; national departments, 277-^279, 
286; separate bureaus and gommis>= 



59° 



Index. 



sions, 279; Cabinet, 279-282; federal 
administrative tribunals, 304; terri- 
torial, 365. See also Civil service, 
President, and the functions by 
name. 

Expenditures, lack of responsible con- 
trol of appropriations, 236, 418, 419, 
428 ; influence of " log-rolling," 246 ; 
legislative control, 414, 415 ; classes 
of federal, 415 ; purposes of federal, 
415, 416; federal administration, 416, 
417; state system, 417, 418; pur- 
poses of state, 417; municipal sys- 
tem, 418; other local, 41S ; reform, 
428, 429. 

Export duties forbidden, 124. 

Ex post facto laws forbidden, 124. 

Extradition, interstate, 120, i2i'. 

pEDERAL GOVERNMENT, ef- 
fect of physical conditions, 6 ; 
priority of obligation to, 20, 21. See 
also Constitution (federal), Popular 
government. State government, and 
the departments and functions by 
name. 

Fees, revenue from, 417. 

Fifteenth Amendment, 31, 62. 

Filibustering in Congress, 250, 251. 

Fillmore, Millard, as president, 260. 

Finance, state powers, 125; local 
powers, 173, 177. See also Budgets, 
Expenditures, Debt, Revenue, Tax- 
ation. 

Fire protection, city department, 195, 
197; development, 573, 574; mu- 
nicipal system, 574; building laws, 
574; annual loss by fire, 574. 

Fish Commission, 279. 

Florida. See East Florida, West 
Florida. 

Foreign intercourse, federal control, 55; 
protectorates, 373-376 ; Monroe Doc- 
trine, 376-37S; history of American 
policy, 433; adjustment, 433; home 
officials, 433, 434; representatives 
abroad, 434-436; consuls, 436-439; 
treaties, 439-444; America as a world 
power, 444, 445. See also Commerce 
(foreign), War. 

Foreigners. See Aliens. 



Forest land, sale of public, 338. See 

also Parks. 
Forts, criminal jurisdiction over, 357, 

358. 
Fourteenth Amendment, 23, 30, 31, 

62. 
France, sovereignty in, 38; in Mexico, 

yj"]; trade with, 454. 
Franchises, taxation of value, 388. 
Freedom. See Liberty. 
Fugitives, return, 120. 

QADSDEN PURCHASE, 344, 345. 
Gambling, stock and produce 
speculation, 490, 491 ; attempted 
prohibition, 500, 501, 562, 563. 

Garfield, J. A., as president, 261. 

General welfare, state and local respon- 
sibility, 126, 536. 

Germany, and the Monroe Doctrine, 
378; trade with, 454. 

Gerrymander, 71-73, 222. 

Gladstone, W. E., mistake on the fed- 
eral constitution, 50. 

Gores, 170. 

Government Printing Office, 279, 503. 

Governor, state, veto, 136, 137; elec- 
tion, 141; term and reelection, 141; 
dignity, 141; salary, 141; political 
duties, 141, 142; administrative 
duties, 142; social duties, 142; ad- 
visory council, 143; relation toother 
exetutive officers, 143, 144, 146; ter- 
ritorial, 365. See also Executive. 

Granger movement, 524, 

Grant, U. S., as president, 261. 

Great Lakes, commerce, 517. 

Guam, annexation, 345. 

pj ABEAS CORPUS, writ, 26, 161 ; 
suspension, 27; in federal courts, 

307- 

Harbors. See Waterways. 

Harrison, Benjamin, as president, 261. 

Harrison, W. H., as president, 260. 

Hawaii, annexation, 344, 346; popula- 
tion and government, 367; protec- 
torate, 374. 

Hayes, R. B., as president, 261. 

Health, local control, 55; city depart- 
ment, 195 ; public sanitary regula- 



Index. 



591 



tions, 571-573 ; federal regulations, 
572. 

Heeler, political, 99. See also Politics. 

Heimathlosen, 18. 

Homestead Act, 339. 

Hospitals, public, 573. 

House of Representatives, residence of 
representatives, 12, 223; districts and 
apportionment, 71, 72, 221, 222; 
size, 222 ; qualification of members, 
223 ; electors, 223, 224 ; elections, 
224, 225 ; character of members, 225 ; 
length of service in, 225 ; speaker, 
231-233; rules, 241, 242; Committee 
on Rules, 242; limited debate, 24S, 
251; election of president by, 264; 
and the treaty-making power, 473. 
See also Congress. 

TDAHO, suffrage denied to polyga- 
mists, 69; woman suffrage, 70. 

Illinois, city civil service reform, 198. 

Immigration, exclusion of Chinese, 
443, 452, 453 ; protection of immi- 
grants, 450; number and character, 
451; attempted restrictions, 451, 
452; health inspection, 572, 573. 

Impeachment, of state officials, 130, 
153, 154; of federal judges, 300; 
roots, 304; national process and in- 
stances, 305, 306; penalty and object, 

307- 

Indian Territory, government and status 
of tribes, 360, 362, 363. 

Indians, question of citizenship, 17, 18; 
personal rights of tribal, 31 ; right 
to the soil, 358, 359; federal control 
and policy, 359, 361-364; reserva- 
tion system, 359-361; classes, 361- 
363; statistics, 363; wars, 460, 461. 

Indictment, use in criminal jurispru- 
dence, 156. 

Industries, annual production, 482; fed- 
eral and state regulations, 500, 501; 
attitude of government toward pri- 
vate, 503, 506; national, 503; state 
and municipal, 504. See also Com- 
mercial organization. 

Initiative, popular, 80, Si. 

Injunction, writ, i6t ; use by federal 
courts, 308, 309. 



Instrument of Government, 57. 

Insular cases, Z7^~2!73- 

Insurrections. See Law and order. 

Intelligence, transmission of. See Post- 
office, Telegraph, Telephone. 

Interior Department, 27S, 279. 

Internal improvements, history, 519, 
520. See also Waterways. 

Internal revenue, on liquors and tobacco, 
401-403 ; stamp tax and other duties, 
403 ; licenses, 404. Seealso Taxation. 

Interstate Commerce Act, 507, 508, 524, 

525- 
Iowa, former prohibition, 569. 
Isthmus of Panama, protectorate, 375, 

376; and the Monroe Doctrine, t^-]'], 

378; canal, 409. 

JACKSON, ANDREW, as presi- 

■J dent, 260; and the bank, 488. 

Japan, trade with, 455. 

Jefferson, Thomas, parliamentary rules, 
240; as president, 259, 260. 

Johnson, Andrew, as president, 260, 
261 ; impeachment, 305, 306. 

Judiciary, federal, history, 51, 296-298 ; 
number of judges, 298 ; appointment 
and term, 298, 299; qualifications 
and character, 299, 301 ; salary and 
retiring allowance, 299, 300 ; creation 
of vacancies, 300; dignity of the 
office, 300; Supreme Court, 301, 
302; application of opinions, 302, 
306 ; personnel of the inferior courts, 
302, 303 ; district courts, 303 ; cir- 
cuit courts, circuit courts of appeals, 
303 ; special courts, 303, 304 ; ad- 
ministrative tribunals, 304, 525 ; 
process of impeachment, 304-306 ; 
appointive power of judges, 306 ; 
writs, 307, 308 ; punishment for con- 
tempt of court, 308, 309 ; jurisdiction 
as to law, 309, 310; jurisdiction as 
to parties, 310-312 ; the nation as a 
party, 311 ; state as party, 312-314 ; 
appeals, 314, 315 ; control over state 
statutes and constitutions, 315-317; 
control over federal statutes, 318, 
319 ; courts of the District of Colum- 
bia, 356 ; territorial courts, 365, See 
also next title. 



592 



Index. 



Judiciary, state, trial by jury, 22, 23, 
29, 30, 32, 156, 159, 160; habeas cor- 
pus, 26, 27, 161 ; right to fair proceed- 
ings, 29, 30 ; colonial, 43 ; colonial 
criminal law, 45 ; duty of expounding 
the constitution, 64 ; interstate credit, 
120 ; extradition, 120, 121 ; impeach- 
ment, 130, 153, 154; importance, 
151, 152,166; the bar, 152; designa- 
tion of judges, 152, 153; their term, 
pay, and removal, 153, 154; courts 
and appeal, 154, 155; statutory and 
common law, 155 ; criminal law pro- 
cess, 155-157; punishments, 157; 
civil law and jurisprudence, 158-161 ; 
equity, 158 ; requirement of an actual 
case for decision, 158; precedence, 
158; field of civil cases, 159; method 
of civil trial, 159, 160; writs, 161; 
control over executive officials, 161- 
163; control over statutes and execu- 
tive acts, 163-166 ; judge-made law, 
165 ; appeal to federal courts, 315 ; ju- 
risdiction over acts committed on fed- 
eral sites within states, 357,358; foun- 
dation of civil and criminal law, 576. 

Jurisdiction, 354 ; diverse and concur- 
rent national and state, 354, 355, 
357, 358. See also State government. 

Jury trial, right to, 22, 23, 29, 30, 32 ; 
use in criminal law, 156 ; use in civil 
law, 159, 160 ; in federal courts, 303. 

Justices of the peace, 155. 

TZ ANSAS, prohibition, 569. 

Kentucky, constitutional anach- 
ronism on slavery, 122 ; county 
option, 176. 

T ABOR, convict, 24, 502; regula- 
tion by legislation, 501 ; employ- 
ment of women and children, 501; 
hours, 501, 502; boards of arbitra- 
tion, 502 ; strikes and enforcement 
of contracts, 502 ; tendency of judicial 
decisions and legislation, 502, 503. 

Lakes. See Waterways. 

Land and landholding, private, the 
normal condition, 322; extent of 
ownership, 322 ; conveyance, 322, 
323; as security, 323; number of 



private holdings, 324; large estates, 

324; value, 324; social value, 325; 
corporate, 325, 326; alien and non- 
residential, 326 ; tendency toward 
large holdings, 327 ; eminent domain, 
327; municipal, 328,329; state, 329- 
332; county, 331 ; improved national, 
332-335 ; national reservations, 332, 
333 i public and private ownership 
contrasted, 353, 408; jurisdiction 
over private, 354; jurisdiction over 
national sites within states, 357, 
358; taxation, 384; assessment, 390. 
See also Public lands. 

Law and order, basis of civilization, 
576; forms of associated violence, 
576, 577; instances of associated vio- 
lence, 577; ordinary method of pre- 
serving, 577, 578, 581; treason, 578; 
division of administration, 578, 579; 
use of militia, 579, 581; federal aid, 
579; direct federal suppression of 
disorders, 579-581; ultimate defence 
of society, 581, 582. 

Laws, conflict, 121; codification, 138; 
attempt at interstate agreement, 139; 
Revised Statutes, 256. See also Con- 
gress, Judiciary, Legislature. 

Legislation, popular, 78-81. See also 
Congress, Laws, Legislature. 

Legislature, colonial, 43; residuary 
powers of state, 127, 128; choice and 
conditions of membership, 128, 129; 
organization, 1 29-131; meetings, 
131; process of legislation, 131, 132; 
initiative of legislation, 133; influ- 
ences on, 133-136; governor's veto, 
136, 137; public and private bills, 
137; output of legislation, 137, 138; 
necessity of new legislation, 138; 
interstate harmony of legislation, 
139; judicial control of legislation, 
163-165,316,317; town, 173; county, 
175) i77t 17^; state, control of city 
charters, 184-186; city, 188-192, 212, 
213; territorial, 366. See also Con- 
gress, and the functions by name. 

Liberia, protectorate, 374. 

Liberty, history of Anglo-Saxon, 21- 
23 ; personal freedom and exceptions, 
23-26 ; freedom of movement, 25 ; 



Ind 



ex. 



593 



habeas corpus, 26, 27, i6r, 307; right 
of personal opinion and its expres- 
sion, 27-29; right to justice, 29, 30; 
right of dependents and colonists, 31, 
32, 372 ; political rights, 32 ; social 
rights, 32, 33 ; personal rights and 
sovereignty, -iil \ right of revolution, 
37 ; guarantee, 124; ordinary and ulti- 
mate means of preserving, 5S1, 582. 
Libraries, public, national and state, 
549; local, 550; educational value, 
550 ; travelling, 550. 
Library Hall Association, no, in. 
Lieutenant-governor, functions and suc- 
cession to governorship, 142, 143. 
"Light money," 3SS. 
Lighting, public, 574. 
Lincoln, Abraham, on the Union, 114; 

as president, 260. 
Liquor traffic, local option, 79, 570; 
state monopoly in South Carolina, 
504, 571 ; regulation of interstate, 
507 ; simple regulation and taxation, 
569, 570; attempted prohibition, 569, 
570; high license, 570; attempt to 
make dealers responsible, 570, 571; 
problem, 571. 
Lobby, influence, 247. 
Local government, in England in 
seventeenth century, 41 ; colonial, 
44, 45 ; scope of powers, 55 ; and the 
initiative and referendum, 79-81 ; and 
national politics, 107-109; non-par- 
tisan political organization, no, in; 
state control, 138, 16S, 179; creation 
and functions, 168 ; varieties of rural, 
1 68; lack of separation of powers in 
rural, 168; school districts, 169; 
villages and boroughs, 169, 170; 
mixed systems, 176-178; improve- 
ments in rural, 17S, 179; responsible 
for general welfare, 536. See also 
Cities, County government, Town 
government. 
"Log-rolling," 135, 246. 
Lotteries, 500, 562, 563. 
Louisiana, constitution put in force 
without ratification, 61 ; parishes, 
175 ; annexation, 343, 345 ; territorial 
government, 370. 
Lynch law, 157. 



JYfACHINE, pohtical, and the boss, 
9S-103. See also Politics. 

McKinley, William, as president, 261. 

Madison, James, as president, 260. 

Maine, educational suffrage qualifica- 
tion, 69; prohibition, 569. 

Mann, Horace, on defects in public 
schools, 537, 538. 

Manufacturing. See Industries. 

Marshall, John, as chief justice, 297. 

Massachusetts, educational suffrage 
quahfication, 69; advisory executive 
council, 143 ; civil service reform, 
148-150, 198; state roads, 417, 515; 
beginnings of education, 536; re- 
quirement as to high schools, 542; 
former prohibition, 569. 

Mayor, veto on municipal acts of state 
legislature, ]S6; election, 192; duties 
and responsibility, 192, 194, 199, 212; 
veto, 189. See also Cities. 

Mexico, protectorate, 375 ; trade with, 

457- 

Michigan, probable division, 116. 

Midway Island, claimed, 345. 

Militia, theoretical and actual organiza- 
tion, 472; use, 472, 473, 579; naval, 
473; defects in active service, 473- 

475> 477- 

Mineral land, sale of public, 328. 

Mining. See Industries. 

Minnesota, direct nominations, 109; 
township option, 17S. 

Minority, protection, 37, 39; represen- 
tation, 76, TJ. 

Mississippi, negro disfranchisement, 69 

Mississippi River and its tributaries, 
internal improvements on, 517, 518. 

Money, states forbidden to coin, 124 
deposition of public, 408, 409; legal 
tender notes, 424, 425, 427, 495, 498 
interest-bearing treasury notes, 427, 
498 ; state bank paper, 48 7 ; tax on 
state bank paper, 4S8 ; national bank 
notes, 4S9 ; colonial circulation, 496, 

497 ; Revolutionary circulation, 497 ; 
congressional control, 497 ; federal 
coins, 497 ; struggle over double 
standard, 498, 499 ; silver certificates, 

498 ; silver treasury notes, 499. 
Monroe, James, as president, 260. 



38 



594 



Index. 



Monroe Doctrine, origin, 376; applica- 
tions, 376-37S. 

Morals, public regulation, 55, 561, 562; 
attempted prohibition of gambling 
and prostitution, 562, 563. 

Mormons. See Utah. 

Mortmain, 326. 

Museums, public, 550, 551. 

-IVTATIONAL BOARD OF 

■^ HEALTH, 572. 

National Conference of Charities and 
Corrections, 569. 

National Museum, 279. 

Naturalization, control and process, 17; 
exceptions, 1 7 ; effect on claim of 
native country, iS. 

Navy, Department, 278, 279 ; civil 
head, 462 ; retirement of officers, 
463; history, 466, 467; organization 
and pay, 467, 46S ; strength, 46S ; 
ships, 46S ; administration, 46S ; com- 
bined training in engineering and nav- 
igation, 468, 469 ; peace duties, 469 ; 
naval academy,47o, 471 ; War College, 
471 ; naval militia, 473 ; present needs, 
477; cost, 477. See also War. 

Nebraska, referendum, 80. 

Negroes, population and distribution, 
10, 11; personal rights, 25, 31-33; 
suffrage, 69, 83 ; special educational 
funds, 546. 

Nevada as a state, 350. 

New England Confederation, 48. 

New Hampshire, election of legislators, 
128; former prohibition, 569. 

New Mexico, annexation, 344-346. 

New Orleans, private sewers, 572. 

New York, civil service reform, 148- 
150, 19S ; village government, 169; 
tax on value of franchises, 38S ; state 
control of education, 542. 

New York City, rapid transit, 529, 533, 
534; free lecture courses, 551. 

Nobility, titles of, forbidden, 124. 

Nominations. See Politics. 

Non-partisan boards, 1.15. 

North Carolina, no veto power, 136; 
appointed county officers, 174; early 
state university, 537. 

North Dakota, prohibition, 569. 



QFFICERS. See Civil service. Ex- 
ecutive. 

Ohio, no veto power, 80 ; tax inquisi- 
tion, 392. 

Olney, Richard, application of the 
Monroe Doctrine, 2il'i- 

Order. See Law and order. 

Ordinance of 17S4, 364. 

Ordinance of 1787, provisions, 23, 364, 

365- 
Oregon, popular initiative, 80; annexa- 
tion, 343-345 ; boundary controversy, 
347- 

pARDON, governor's power, 142; 
president's power, 270. 

Parks and forests, municipal, 328 ; state, 
329, Z3°^ 504; national, 332, y-,^. 

Parliament, development, 39-41; sys- 
tem compared with congressional, 
243, 244. 

Partnership, 483. 

Patents system, 492. 

Peabody, George, fund for negro edu- 
cation, 546. 

Pennsylvania, borough government, 
169; Ripper Bill, 185, 186; budget, 

413- 
Pensions, private bills, 257, 479; laws 

and amount, 477-478 ; difficulties of 

the system, 479, 4S0. 
Personal property, taxation, 3S5-387; 

assessment, 390-392 ; public, 409, 

410. 
Petition, right, 28. 
Petroleum land, sale of public, y^Z. 
Philippine Islands, slavery, 24; personal 

rights, 32, 372; annexation, 344-346 ; 

government, 367, 368, 372; advan- 

tageof possession, 379, 455 ; question 

of religious property, 558. 
Physical conditions and resources, 5, 

6 ; effect on political development, 6. 
Pierce, Franklin, as president, 260. 
Pilots, control, 449. 
Plantations, 170. 
Platform, political, state, 95 ; national, 

97- 
Police, municipal, 187, 188, 195, 197, 
575i 576; state and local function, 
575; rural, 575; private, 575. 



Index. 



595 



Police power and obligation of con- 
tracts, 317. 

Political subdivisions, various, 6, 7. 

Politics, education, 11, 12; history of 
American parties, 86-89; party or- 
ganization and control over voters, 
89, 90, 100; independents, 90; com- 
position and duties of party com- 
mittee, 90, 91 ; necessity of party 
nominations, 91, 92; caucus, 92, 93; 
nominating convention, 93-95 ; state 
platform, 95 ; former national nomi- 
nations, 95 ; national convention, 96- 
98 ; legitimate and vicious organiza- 
tion, 98, 99; local leaders, 99, loo ; 
characteristics and control of the 
boss, 100-103, 106, 108, 134; rela- 
tion of national to local, 106-109; 
local non-partisan movements, 108- 
III ; reforms, 109-112 ; direct nomi- 
nations, 109; party revolt, 11 1, 112; 
functions of the town meeting, 173 ; 
municipal, 208-210, 213; party man- 
agement in Congress, 241-243 ; in- 
fluence of leaders on national legis- 
lation, 246. See also Elections, 
Suffrage. 

Polk, J. K., as president, 260. 

Popular government, laissez-faire basis, 
35 ; conception of sovereignty under, 
35-38; expression through represen- 
tation, 38, 39 ; development in Eng- 
land, 39-41 ; development in the 
colonies, 41-45 ; significance of early 
state constitutions, 45-48; people the 
fountain of power, 51, 52. See also 
Liberty, State government. 

Population, growth, distribution, and 
movement, 8, 9 ; race elements, 9- 
II ; growth of urban, 181, 182, 201, 
202; distribution of urban, 203- 
205. 

Porto Rico, citizenship, 19; annexation, 
344i 345 ; government, 367. 

Posse comitatus, 578, 580. 

Postmaster-general, 278, 279; appoint- 
ing power, 286. 

Post-office, status of fourth-class post- 
masters, 293, 294 ; introduction, 
508; postage, 508, 509; organiza- 
tion, 508, 509; principles, 509; for- 



bidden mail, 509, 563 ; second-class 
matter, 509; statistics, 509, 510; 
special services, 510. 

President, genesis of the office, 51; 
method of nominating, 95-98 ; influ- 
ence on national legislation, 246, 247 ; 
veto power, 254-256; history of the 
presidency, 259-261 ; method of elect- 
ing, 261-264; succession, 264, 265; 
term, 265 ; reelection, 265, 266; 
qualifications, 266 ; character, 266 ; 
inauguration, 267 ; home, 267 ; eti- 
quette, 267 ; social duties, 268 ; 
tours, 268 ; touch with public opin- 
ion, 268, 269 ; compensation, 269 ; 
functions, 269, 270; exercise of the 
power of appointment and removal, 
270-273, 281-285 ; and Congress, 273, 
274; dignity and power, 274, 275; 
and his Cabinet, 280-282 ; as head 
of the diplomatic service, 435 ; as 
commander-in-chief, 462. See also 
Executive. 

Press, liberty, 28 ; political influence, 
104, 105. 

Previous question, in state legislatures, 
132 ; in House of Representatives, 
251. 

Professions, state regulation, 501 ; 
schools, 537, 544. 

Proportional representation, 'j'j. 

Prostitution, attempted prohibition, 

563- 

Protection, right to, 19. 

Protectorates, American, 2i73-37(>- 

Providence, R. I., qualifications for 
municipal voting, 208. 

Public lands, donations to the states, 
119, 339; colonial conditions, 335; 
state cessions, 335 ; policy of admin- 
istration, 335, 336, 340 ; extent, 336; 
surveys, 336 ; objections to system 
of surveys, 337; sales, 337, 338 ; sale 
of mineral and forest land, 338 ; do- 
nations to individuals, 338, 339 ; 
school lands, 339 ; donations for 
internal improvements, 339, 340 ; 
data of sales, 340; mismanage- 
ment, 340, 341 ; future condition, 

341- 
Public opinion, influence on legislation, 



59^ 



Index. 



133, 246, 257; and the president, 268, 
269. 
Punishment, convict labor, 502 ; forms, 
565, 566 ; indeterminate sentences, 
568. 

QUORUM, congressional, 229, 230, 
241, 242. 

"DACES in the United States, 9-1 1. 
See also Immigration. 

Railroads, steam, public aid to, for- 
bidden, 124, 410; land, 325 ; use of 
eminent domain, 327 ; land grants, 
339, 340, 527 ; Pacific Railroad bonds, 
409, 527 ; built or aided by states, 
409, 521, 522, 526, 527; built by 
Cincinnati, 410; introduction, 512; 
consolidation and standard gauge, 
513, 525, 526; state control of con- 
struction, 521 ; reasons for private 
systems, 522 ; defects in charters, 522 ; 
grovirth, 522, 523 ; importance and 
good management, 523 ; irregulari- 
ties in administration, pools, discrim- 
ination, 523, 524 ; state regulation, 
524 ; Interstate Commerce Act and 
its results, 524, 525 ; and the electric 
lines, 531, 532. See also Electric 
railroads, Street railroads. 

Real estate. See Land. 

Reed, T. B., rule on quorum, 241. 

Referendum, system and merits, 78-81. 

Registration, electoral, 73, 84. 

Religion, right of opinion, 29 ; and 
suffrage, 66-69 ; state control, 126, 
557< 55^1 denominational schools, 
541, 549; and the public schools, 
548, 549 ; church history, 554-557; 
federal relations, 557-559 ; local 
public support, 558 ; freedom from 
taxation, 558 ; judicial cognizance of 
doctrines, 559 ; denominations and 
their strength, 559, 560 ; organiza- 
tion of churches, 560, 56T. 

Removals. See Civil service. 

Representation, development, 3S-41. 
See also Congress, Elections, Legis- 
lature. 

Residence of legislators, 12, 72, 73, 
128, 223. 



Resources, national, 5, 6 ; effect on 
political development, 6. 

Revenue, sources of public, 383 ; from 
public property, 408-410 ; fluctuation 
of federal, 410, 411 ; from fees, 417. 
See also Debt, Taxation. 

Revised Statutes, 256. 

Revolution, right, T^y ; purpose of 
American, 377. 

Rhode Island, no veto power, 136 ; 
former prohibition, 569. 

"Riders," legislative, 252. 

Rights. See Liberty. 

Riots. See Law and order. 

Rivers. See Waterways. 

Roads, county control, 179 ; boulevards 
in cities, 328 ; state, 417, 515 ; 
colonial, 511 ; pikes, 512 ; main- 
tenance, 514; proper road-building, 
514, 515; attempts to improve, 515; 
National Road, 515 ; footpaths, 516; 
toll, 516; federal restriction on 
bridges, 516, 517. See also Streets. 

Roosevelt, Theodore, as president, 261. 

Rules, legislative, 131, 132 ; congres- 
sional, origin, 239, 240 ; purpose, 
240; complication, 240, 241 ; and 
party management, 241, 242 ; House 
committee, 242. 

CAMOA, annexation of Tutuila, 345; 

protectorate, 374. 
San Domingo, attempted annexation, 

344- 

San Francisco, budget, 414. 

Selectmen, town, 171, 172. 

Senate, federal, special functions, 217; 
choice of senators, 218, 219 ; question 
of popular choice, 219; qualifications, 
220; term and reelection, 220; pre- 
siding officer, 231 ; unlimited debate, 
248, 250 ; confirmation of presidential 
appointments, 270, 271 ; "senatorial 
courtesy," 271 ; treaty function, 441, 
442. See aho Congress. 

Senate, state, functions, 130 ; presiding 
officer, 131. See also Legislature. 

Separation of powers, in the colonies, 
43 ; in state constitutions, 47, 48 ; in 
England and America, 53, 54, 161, 
162 ; constitutional safeguard, 272, 



Index. 



597 



273; lacking in rural government, 
16S. See also Executive, Judiciar}', 
Legislature. 

Sheriff, county, 175, 577. 

Shipping, American, protection, 447; 
register, 447, 44S ; tonnage, 44S ; 
changes in carrying trade, 448 ; regu- 
lation, 448, 449 ; subsidies, 449, 450 ; 
protection of passengers, 450. 

Slater fund for negro education, 546. 

Slavery, and its abolition, 23, 24 ; in 
the Philippines, 24 ; in the District 
of Columbia, 356. 

Smithsonian Institution, 279. 

Social compact theory, as a check on 
sovereignty, 2)7 \ ^''^^ ratification of 
amendments, 62. 

Society, character of American, 11-13 ; 
social rights, 32, t,t, ; social functions 
of governor, 142 ; of town meeting, 
173; of mayor, 194; of president, 
26S; of consuls, 439. 

South America, trade with, 454, 455, 
45S. 

South Carohna, constitution put in 
force without ratification, 61 ; negro 
disfranchisement, 69; state liquor 
monopoly, 504. 

South Dakota, referendum and initia- 
tive, 80 ; former prohibition, 569. 

Sovereignty, described, 35, 36: popu- 
lar, and its expression, 36-39. 

Speaker of state legislature, 131, 134 ; 
of House of Representatives, status, 
231, 232; duties and control, 232, 
233. 241. 

Speculation in stock and produce, 490, 
491. 

Spoils system. See Civil service. 

State Department, state, 143 ; federal, 

27S, 433- 
State government, effect of abnormal 
growth of cities, 9; citizenship, 16; 
colonial types, 43, 44; and the Union, 
status and division of powers, 51-55, 
114, 122-124, 3ro, 312-314, 354, 355, 
357, 358, 536; and the local govern- 
ments, 55, 172, 1S3, 1S6-1S8 ; and 
the referendum, 79 ; and national 
politics, 106-108 ; variety and unity 
of organization, 114-116; methods 



of admission into the Union, 116, 
117; equality in the Union, 117; 
specific conditions of admission, iiS ; 
continuance of territorial laws, 118; 
privileges in the Union, 118, 119; 
rival, 119; territorial integrity, 119; 
gifts from the federal government, 
T19, 339 ; interstate obligations, 120- 
122 ; functions and excluded powers, 
124-126; personnel separate from 
that of the nation, 273 ; as party in 
federal suits, 312-314 ; control of 
federal courts over state laws and 
actions, 315-317; real estate, 329- 
332 ; cession of land claims, 335 ; 
boundaries, 349-351. See also Con- 
stitutions, and the departments and 
functions by name. 

Stay and tender laws, 494. 

Street railroads, problem of transpor- 
tation, 205-207, 211 ; development, 
206, 528 ; elevated, 206, 529; consoli- 
dation, 206, 529 ; underground, 206, 
533, 534 ; increase in passengers, 528 ; 
wealth, 529 ; reform, 529, 530 ; cor- 
rupt purchase of franchises, 530 ; 
public ownership, 532-534. 

Streets, department, 195; character of 
pavements, 515, 516; sidewalks, 516. 

"Strikes," legislative, 135. 

Subpcena, use, 159. 

Subsidies on American shipping, 449, 
450. 

Subways for city transportation, 206, 

533> 534-^ 

Suffrage, alien, 16; colonial, 44 ; history 
of Anglo-Saxon, 66, 67 ; qualifica- 
tions, 67-69 ; negro, 69, 70, S3 ; 
woman, 70, 71 ; state control, 125; 
municipal, 208 ; national, 223, 224, 
262. See al^o Elections, Politics. 

Supervisors, county board, 177, 178. 

Supreme Court, power of expounding 
the federal constitution, 64 ; justices, 
299 ; salary, 299 ; character, 301 ; 
sittings, 301 ; method, 301, 302 ; 
reports, 302 ; appellate jurisdiction, 
303, 314, 315 ; original jurisdiction, 
310, 314 ; arbiter on state and federal 
jurisdiction, 355 ; Insular decisions, 
371-373. &e ato Judiciary. 



598 



Index. 



Switzerland, referendum and initiative, 

78-81. 
Syndicates, 486. 

npANEY, R. B., as chief justice, 297, 
^ 298. 

Tariff, with dependencies, 371, 372, 
378, 380 ; history, 394-398 ; table of, 
on principal articles, 398 ; officials 
and collection districts, 398, 399 ; 
systems of duties, 399, 400 ; appraise- 
ment, 400 ; personal baggage, 400, 
401; influence on federal financial 
system, 410, 411, 428; discriminat- 
ing duties on imports in foreign 
ships, 447; and foreign commerce, 

455. 456- 

Taxation, and suffrage, 68; export 
duties forbidden, 124; control in 
cities, 192 ; lien on real estate, 323 ; 
exemption of public property, 353 ; 
in territories, 366 ; during military 
occupation, 369 ; in unorganized 
dependencies, 369; justification, 3S3, 
384, 406; land, 384, personal prop- 
erty, 385 ; double, 385; income, 385- 
387; succession, 387; corporation, 
387, 388 ; value of franchises, 388; 
federal direct, 388 ; tonnage, 388 ; 
light money, 388 ; licenses, 388, 389, 
404 ; limitations on federal and state, 
389; primacy of federal, 390; assess- 
ment, 390-392, 447 ; inquisition, 392 ; 
exceptions, 392, 393 ; rate, 393 ; bet- 
terment, 393 ; collection, 393, 394 ; 
defects in system, 394, 427; federal 
internal revenue, 401-404 ; amount, 
404, 405; incidence, 405, 406; on 
state bank notes, 48S. See also 
Tariff. 

Taylor, Zachary, as president, 260. 

Telegraph, c;io. 

Telephone, 510, 511. 

Tenure of Office Act, 283. 

Territories, District of Columbia, 355, 
356 ; national control, 364, 366 ; 
origin and forms of government, 
364-366, 368 ; termination of govern- 
ment, 366; character of population, 
366, 367 ; and colonies, 368, 369 ; 
status , under the Insular decisions, 



372, 373 ; and dependencies, 373. 
See also Dependencies. 

Territory, history of national, 343-345 ; 
process of annexation, 345, 346; 
external boundaries, 346-348 ; inter- 
nal boundaries, 348-351. See also 
Dependencies, Land, Territories. 

Texas, admission, 117; annexation, 
344, 346 ; boundaries, 347. 

Thirteenth Amendment, 23-25, 62. 

Title, transfer, 489, 490. 

Tonnage, duties, 388 ; discriminating 
duties, 447; amount of American, 
448. 

Town government, genesis of New 
England, 170; town meeting, 170- 
174; conflict of interests, 171; ex- 
ecutive, 171, 172; state control, 172; 
in the Middle States, 172; in the 
West, 1 72 ; compared with county 
government, 175, 176; decadence of 
town-meeting, 178; expenditures, 
418. See also Local government, 
and next title. 

Township-county system, 176-178; 
success, 178. 

Trade marks, 493. 

Transportation, development, 51 1-5 13. 
See also Electric railroads, Railroads, 
Roads, Shipping, Street railroads, 
Waterways. 

Treason, definition and instances, 
578. 

Treasurer, state, 143, 144. 

Treasury Department, 278 ; adminis- 
tration of federal expenditures, 416, 
417. 

Treaties, forbidden to the states, 122; 
history of American, 439, 440; nego- 
tiation, 440, 441 ; approval of the 
Senate, 441, 442 ; when complete, 
443 ; claim of House of Representa- 
tives, 443 ; and statutes, 443, 444. 

Tree Claim Act, 339. 

Trusts, 485, 486. 

Tutuila, annexation, 345. 

Tyler, John, as president, 260. 

TTTAH, polygamy question, 29, 366, 
558, 559; woman suffrage, 70; 
popular initiative, 80. 



Index. 



599 



■yAN BUREN, MARTIN, as presi- 
dent, 260. 

Vermont, former prohibition, 569 

Veto power, in England, 40 ; in the 
colonies, 43, 136 ; and the optional 
referendum, 79 ; governor's, 136, 
137; mayor's, 1S6, 189; president's, 
254-256. 

Vice-president, presiding officer of 
Senate, 231 ; succession to the pres- 
idency, 264, 265 : qualifications, 266. 

Village government, 169, 170. 

Virginia, constitution put in operation 
without ratification, 61 ; negro dis- 
franchisement, 69 ; early state uni- 
versity, 537. 

Voting. See Elections. 

^AKE ISLAND, claimed, 345. 

War, federal control, 55 ; state 
powers, 126, 142 ; Department, 27S, 
462, 520, 521; history, 459-462; 
declaration, 474 ; severity, 476, 477 ; 
captures, search, and blockade, 477. 
See also Army, Militia, Navy. 



Washington, George, as president, 
259. 

Washington, D. C, characteristics, 
334) 335- ^^^ ^^^^ District of 
Columbia. 

Waterways, extent, 517; federal con- 
trol, 517; nature of federal improve- 
ments, 517, 51S; history of river and 
harbor legislation, 519, 520; harbor 
improvements, 520 ; superintendence 
of improvements, 520, 521 ; defects 
in river and harbor legislation, 521. 

Weights and measures, metric system, 
495 ; congressional control, 496 ; local 
regulation, 496. 

West Florida, annexation, 344-346 ; 
boundaries, 347. 

West' Indies, trade with, 457. 

Wisconsin, Bennett Law, 541. 

Woman suffrage, 70, 71. 

World power. United States as, 444, 

445- 
Writs, state, 160, 161 ; federal, 307- 

3°9- 
Wyoming, woman suffrage, 70. 



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